Whether Dumb Starbucks Is A PR Stunt, A Joke Or Real… Its 'Parody' Claims Are Pretty Questionable
from the and-undermined-by-its-own-statements dept
There’s been a bunch of buzz making the rounds concerning the launch of the “Dumb Starbucks” coffee shop in LA — which looks just like a regular Starbucks, but with the word “Dumb” in front of everything.
That said, the operators of the coffee shop are claiming that it’s okay to do this because it’s a parody, as they explain in this FAQ:
Is this a Starbucks?
No. Dumb Starbucks is not affiliated in any way with Starbucks Corporation. We are simply using their name and logo for marketing purposes.
How is that legal?
Short answer – parody law.
Can you elaborate?
Of course. By adding the word ‘dumb’, we are technically “making fun” of Starbucks, which allows us to use their trademarks under a law known as ‘fair use’. Fair use is a doctrine that permits use of copyrighted material in a parodical work without permission form the rights holder. It’s the same law that allows Weird Al Yankovic to use the music from Michael Jackson’s “Beat It” in his parody song “Eat It”.
So is this a real business?
Yes it is. Although we are a fully function coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art. So, in the eyes of the law, our “coffee shop” is actually an art gallery and the “coffee” you’re buying is considered art. But that for our lawyers to worry about. All you need to do is enjoy our delicious coffee!
Are you saying Starbucks is dumb?
Not at all. In fact, we love Starbucks and look up to them as role models. Unfortunately, the only way to use their intellectual property under fair use is if we are making fun of them. So the “dumb” comes out of necessity, not enmity.
That’s all very interesting, but looks more like it was written by someone mocking the concept of fair use rather than by anyone with a legal understanding of fair use. Beyond confusing copyrights and trademarks (both of which do have a fair use doctrine, though they’re somewhat different), by more or less admitting that they’re only doing this as a cover to be able to use Starbucks’ name, rather than as legitimate social commentary, they’re basically giving up their fair use defense. Not that it wouldn’t make an interesting case. As a big supporter of fair use, it’s still a little worrying when people pretend it allows for things that it almost certainly doesn’t allow for, as that leads to a cheapening of the concept of fair use.
Still, chances are this is all a prank that will be revealed shortly (perhaps by the time I get this post finally written, edited and posted…) and so the actual legal questions concerning whether this is parody will never be tested. However, it does make me wonder about ways that someone could legitimately use fair use within a retail setting to mock a rival.
Filed Under: copyright, dumb starbucks, parody, pr stunt, prank, trademark
Companies: dumb starbucks, starbucks
Comments on “Whether Dumb Starbucks Is A PR Stunt, A Joke Or Real… Its 'Parody' Claims Are Pretty Questionable”
So this is the natural extension of the “Of course GoldieBlox can use Beastie Boys to promote their product because parody is protected” argument. So, in order to be consistent, you better take the side that their parody and commerce is protected in this fashion. To take a reserved stance here would be a lame cop-out, but you wouldn’t do that would you? Clearly this is an instance of extending the argument about how fair use isn’t an exemption but a right of moral imperative or whatever the heck twisted interpretation that gets thrown around here. Can’t have your cake and eat it too, unless this is a ray of light that indicates the next GoldieBlox / Beastie Boys article is going to be a statement of renouncing ignorance?
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No, it isn’t the natural extension of anything except your own delusion.
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This is the most important sentence in the article and undermines what you’re trying to say
“by more or less admitting that they’re only doing this as a cover to be able to use Starbucks’ name, rather than as legitimate social commentary, they’re basically giving up their fair use defense.”
Unlike the GoldieBlox/Beastie Boys case, here they are flat out admitting that the only reason they are using the adjective ‘dumb’ is so they can attract customers with the Starbucks logo.
Goldieblox didn’t do that. Rather than just use the one word, they used someone else’s music and then changed the meaning of the music entirely.
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o this is the natural extension of the “Of course GoldieBlox can use Beastie Boys to promote their product because parody is protected” argument. So, in order to be consistent, you better take the side that their parody and commerce is protected in this fashion.
Uh, no. First off, Goldieblox’s use of the Beastie Boys did appear to be parody. They were directly commenting on the song. I don’t think that’s the case here, because they explicitly note that they’re not really commenting on the quality of Starbucks.
Second, there’s a big difference between fair use in copyright for use in a single parody song, and fair use in trademark to build an entire brand.
Nuance and details are important. It’s not black and white.
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Clearly this is an instance of extending the argument about how fair use isn’t an exemption but a right of moral imperative or whatever the heck twisted interpretation that gets thrown around here.
Did you read all the way through the article? Mike laid out his reasoning as to why this instance most likely wouldn’t be a legitimate fair use defense (and therefore NOT comparable to the GoldiBlox/Beastie Boys affair) with this statement:
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if GoldieBlox had straight taken the original source music, added a word to the front, THEN sold it as a new song it would be a very different story than them completely remaking the song to sell a product not in the same market as the parody.
I mean, please explain to me how GoldieBlox’s commercial would possibly cause “brand confusion” for people looking to buy a beastie boys album.
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The fundamental difference is that ‘Dumb Starbucks’ are claiming that being a parody allows them to directly build a brand. Which falls afoul of trademark law, it seems. I’ll have to see if being a parody has been successfully used as a defense in a trademark suit.
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So this is the natural extension of the “Of course GoldieBlox can use Beastie Boys to promote their product because parody is protected” argument.
No. In fact, they’re almost totally different.
GoldieBlox claims to have engaged in parody, as a form of copyright fair use. It was a commercial use, but that alone isn’t enough to make the use not fair for copyright purposes. There were no trademark issues in that case, because the song isn’t a trademark.
In this case, the issue is almost entirely one of trademark and trade dress, and the only copyright issue is the use of the Starbucks mermaid logo, which is likely copyrighted as well as trademarked. The copyright doctrine of fair use has no relevance in a trademark case, and while there is some allowance for parody in trademark law, it is very very minimal, and I doubt that this qualifies. (Which would be no surprise; hardly anything ever does)
Now, some people might want to expand the parody defense in trademark — and it is really quite narrow now, and probably wouldn’t do any harm if it were expanded a little — but Dumb Starbucks probably still won’t qualify. They’re using the various Starbucks marks too much, and are operating as direct competitors. I don’t know who advised them that they were on solid ground, but I sure wouldn’t want to be them.
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“the only copyright issue is the use of the Starbucks mermaid logo”
The mermaid itself, according to the Starbucks web site, was taken from a 16th century Norse woodcut, and so is clearly in the public domain. The logo as a whole, though, is very likely copyrighted.
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That’s interesting; I hadn’t known that.
But in any case, whatever elements of it are sufficiently original, creative, etc. as to be copyrightable, would be protected. And while it might have originally come from a woodcut, it’s not a woodcut anymore.
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This kind of argument is what I was immediately afraid of from this stunt.
1. Idiot does not like fair use/parody.
2. Opens really blatantly infringing store
3. Then goes to court presenting horrible case and looses.
4. Idiot then has a party celebrating his creation of horrible case law “against parody”
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One case bad case is hardly a precedent when there are many others that can be cited that counter it.
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How dare you post a dissenting opinion? Reported!!!
Signed-
Your Average Techdirt Douchebag
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average_joe just hates it when due process is enforced.
Hard to defend “parody” art when your own FAQ basically admits right off the bat you are ripping off another company wholesale for basically free marketing.
For everybody’s sake I hope this is a joke. Otherwise it will just end up wasting money and time for everybody.
I'd rather go to MacDowell's
https://www.youtube.com/watch?v=29wNCH4RBrk
So if this does turn out to be a prank...
rather than a business, does that mean it’s back to being a parody?
How much coffee are you allowed to sell / money are you allowed to make in a prank?
Re: So if this does turn out to be a prank...
They haven’t “sold” any, everything has been given away for free.
Amazing how enraged some people without a sense of humor are getting over this in other forums. Obviously, the joke about it being legal due to fair use is part of the entire joke. They also point out that they don’t think Starbucks is dumb, but they don’t mention whether or not the think that people paying $4 for a cup of coffee are. One final thing to note, so far, nobody’s been charged for anything the “store” “sells”…
Think they need to change the logo before this one has a chance in hell of flying
If the “store” doesn’t actually “sell” anything (everything has been given away for free so far, as part of the “grand opening”), can it actually be infringing the trademark? To be infringing, doesn’t the offending mark actually need to be used “in commerce”? It’s also doubtful as to whether there’d be “confusion” between the two brands, since they seem to be going out of their way to note that they’re NOT Starbucks.
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I’d imagine that the menu that has numbers that are not zero next to the names of the drinks would be used by a prosecution as proof that this is being done in commerce. How long does a grand opening typically last?
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They’re providing goods to customers in a manner which affects interstate commerce, if only by satiating the customers’ desire for coffee such that they won’t instead go to some other non-free coffee store. That’s enough for a lawsuit.
And aside from infringement, there is also the matter of dilution, for which they may be liable even if the customers are not confused at all. There are good arguments for blurring and tarnishment here, I think.
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“They’re providing goods to customers in a manner which affects interstate commerce, if only by satiating the customers’ desire for coffee such that they won’t instead go to some other non-free coffee store.”
Very weak. Sure it might be enough to convince lawyers to FILE a lawsuit but as for actually winning a trademark case based on a claim that it was a commercial enterprise when no attempt to make any money was made would likely be much more difficult.
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Very weak. Sure it might be enough to convince lawyers to FILE a lawsuit but as for actually winning a trademark case based on a claim that it was a commercial enterprise when no attempt to make any money was made would likely be much more difficult.
Bzzt.
Wrong, but thanks for playing.
From Planetary Motion v. Techplosion, 261 F.3d 1188 (11th Cir. 2001) (cites removed):
It’s not weak. There will really be no problem at all with that, IMO.
Likewise, virtually every business is engaged in, or affects, interstate commerce sufficiently for the federal government to have jurisdiction. The classic case is Katzenbach v. McClung, 379 U.S. 294 (1964) in which a small restaurant was required to stop discriminating against black customers due to federal civil rights legislation. Building on Heart of Atlanta Motel and Wickard, the issue is simply whether there is an affect on interstate commerce, not whether there was a big affect. The coffee probably doesn’t come from California, and the store is only about a mile away from a federal interstate highway. These are the sorts of things that will be enough to let federal regulation apply.
This is all 1L Con Law stuff here. I seriously have to wonder who the lawyer was that advised them that it was okay to do this.
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Ok so this court followed the same twisting of the law logic that was used in United States v. Lopez playing six degrees of separation to undermine the language of the Commerce Clause so that they can claim everything is subject to federal regulation in direct violation of the spirit of the Commerce clause obvious intention to limit the power of the federal government. They then made another weak leap then to try to then change the clear meaning of the Langham Act. The whole decision is bad precedent made by weasel wording.
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Note: that the Langham Act says “uses IN commerce” not “uses that are somehow somewhere connected regardless of how remotely to some commerce by someone somewhere at sometime” which is how that decision reads. It’s a classic twisting of the law to find some way of justifying a bad ruling.
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1st, Lopez was one of the handful of post-Lochner cases that actually found that something wasn’t in the commerce power. So I think you’d be for Lopez, rather than against it.
2d, if the intention of the commerce clause was to limit the power of the federal government — it wasn’t, it was to empower the federal government to regulate some commerce, which otherwise it wouldn’t’ve been empowered to regulate at all — it sure was written incompetently.
3d, the Planetary Motion court’s interpretation of the Lanham Act is perfectly normal. I’m confident that all federal courts would’ve come to the same conclusion. Just because something is given away for free does not mean that it isn’t in the stream of commerce subject to commerce clause regulation. You think that when a drug dealer gives away the first hit to a new drug user, that federal laws don’t apply simply because it was free? That’s an idiotic opinion.
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Maybe I wasn’t clear. I agree with the decision in Lopez. What I was referring to was the weak argument that was made that because some time somewhere in the manufacturing and sale process a firearm produced and sold had something to do with interstate commerce therefore that meant that something completely unrelated like regulating schools and school policies with regards to firearms were granted by the commerce clause to the federal government. It’s fishing for an excuse. The decision was correct but what happened next was Congress just re-weasel worded the law in a weak attempt to make that lame link explicit.
The vast majority of the Constitution is about clearly defining limits on what the federal government is and is not allowed to do and which branches of the government are responsible for and allowed to do what. As the founding fathers clearly had a bad taste in their mouths from centralized authority that felt that they had the right to treat citizens in any manner they saw fit, in drafting the Constitution, they sought to limit the centralized authority.
I have never seen anyone even mention the commerce clause in relation to federal drug possession laws. I suspect that that is because it is not needed. By your argument, growing your own pot as long s you only used resources and acquired within your state would leave you immune from federal prosecution. And no Colorado and Washington state legalization laws are a matter of practicality of enforcement without assistance from the resources of the state not a matter of whether federal law continues to prohibit it.
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The vast majority of the Constitution is about clearly defining limits on what the federal government is and is not allowed to do
And one of those things is to regulate interstate commerce.
I have never seen anyone even mention the commerce clause in relation to federal drug possession laws. I suspect that that is because it is not needed.
Well, as your own argument goes, some sort of power granted to the federal government in the Constitution is needed. Which is it? The power to establish a post office? To borrow money? To establish standard weights and measures? It has to be something specific, since the federal government, unlike the states, is not a plenary government, with a general police power.
As it happens, it is the interstate commerce power. The case you’ll want is Gonzales v. Raich, 545 US 1 (2005) (cites omitted):
The opinion also gets into why it is perfectly in accordance with Lopez, and then there’s Scalia’s concurring opinion, which immediately gets to the point:
By your argument, growing your own pot as long s you only used resources and acquired within your state would leave you immune from federal prosecution.
No, I’m the one arguing that there is an amazingly expansive federal commerce power, in which the idea of purely intrastate commerce that could escape federal regulation is basically just a fantasy. You’re the one who has argued that Dumb Starbucks is on safe ground because it acted in an intrastate manner. I’m not some cartoon animal that will switch sides just because you stop saying ‘duck season’ and start saying ‘rabbit season.’ Try harder or give up.
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I understand your argument. However, that a perfect example of the problem with many of the decisions from recent history. That decision hinges on the logic that because it COULD affect interstate commerce, it does, and therefore grants the federal government authority. That is not how the law is supposed to work. It’s the same leap of logic used to authorize the NSA surveillance. Because anyone COULD commit an act of terrorism, the government gets authority to spy on everyone. You don’t charge and arrest people because they COULD commit a crime. You charge and arrest people if they DO commit a crime. So until they can show that the specific case actually DOES affect interstate commerce by that logic the federal government shouldn’t have authority under the commerce clause.
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Well, whether it is how the law is supposed to work or not, it’s how trademark law currently does work, and it results in Dumb Starbucks being in serious trouble for trademark dilution and perhaps infringement. And now that it turns out to have been connected to Viacom, which has deep pockets, I’d imagine that Starbucks will take legal action.
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Maybe but I doubt it. First, there the bad publicity that Starbucks would receive by attempting to use Trademark law to trample on what is clearly an exercise in First Amendment rights opening themselves up to massive amount of mocking at the hands of not only the public, but an entity such as Viacom that is highly skilled at such mockery and is very capable of disseminating it. Starbucks isn’t stupid. I’m sure they are smart enough just to let this slide.
Also my original contention that the argument was weak had more to do with whether the logic behind it was weak rather than whether it was supported by legal precedent or could be successful or not. As I said before, the Lanham Act clearly states “uses IN commerce” not “uses RELATED to commerce” and the decision you cited is clearly a twisting of the law to justify a decision based on weak logic.
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Giving away coffee in California affects INTERSTATE commerce how? You’d have to prove that people are coming from other states to get the free coffee. It might affect commerce IN California, such that people are waiting in line for free coffee instead of purchasing it at Starbucks, but interstate? Seriously? Don’t see a court making THAT reach…
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He is saying that because the coffee was likely imported from somewhere else, it qualifies as interstate commerce.
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They’re providing goods to customers in a manner which affects interstate commerce
You think people are driving in from outside CA to get a free cup of coffee?
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Whether commerce is interstate or not has nothing to do with it. Trademark only protects against the misuse of a mark in commerce interstate or otherwise.
And the Starbucks corporation just ruined there case...
Just as the Dumb Starbucks may have ruined their defense by admitting that the were just using fair use protections for parody as a cover, the real Starbucks just admitted that there is no confusion over the Trademark…
Re: And the Starbucks corporation just ruined there case...
That the spokesperson for Starbucks can tell it isn’t a Starbucks isn’t the same thing as whether a Starbucks customer can tell. And anyway, dilution doesn’t require confusion; even if you were right, which you certainly aren’t, there’d still be a case.
Seems like a lame attempt to attack beneficial law.
That's dumb
Now if he’d gone with Charbucks…
really?
Visit W3Schools.com!
So let me get this straight
So a business is trying to claim fair use under copyright because it is a parody. But the problem isn’t copyright, it’s a trademark problem, which doesn’t really have a parody exemption. But the business is trying to claim it isn’t a business and that it’s an art gallery, and that it’s giving away its product for free, and it can therefore claim copyright fair use. In trying to predict what might happen if there is an actual court case, I would assume that the business is declared to be an business despite the way it wants to label itself, and that it violates the Starbucks trademark. However, all bets are off because it could be a false flag attack and we can’t really trust judges to see through corporate shenanigans. Fascinating nonetheless because of the complexity!
It’s easy to tell Dumb Starbucks from Starbucks. For starters, Dumb Starbucks’ windows are still intact. 😉
I’d say this is a clever ploy by the REAL Starbucks to weaken fair use laws. By taking “parody” use of something to it’s very extreme, they will certainly get a court and jury to admit that making fun of a company while using their resources isn’t fair use.
And… we will forever be unable to post a picture of a company logo – even under clear fair use – again.
I would like one dumb court precedent, hold the cream.
"Langham" act??? Starbucks ruined "there" case???
Starbucks responds. They don’t mention the “Langham” act or ruin “there” case like the illiterate comments above.
http://money.cnn.com/2014/02/10/news/companies/dumb-starbucks/
Re: "Langham" act??? Starbucks ruined "there" case???
My bad on the “there” thing. Mistypes happen.
Re: Re: "Langham" act??? Starbucks ruined "there" case???
So do misreads.
A good idea, right up until the judge frowns...
“By adding the word ‘dumb’, we are technically ‘making fun’ of Starbucks, which allows us to use their trademarks under a law known as ‘Fair Use’.”
Ummm…Yeah! Good luck with that.
outstanding
I have to admit, it’s shocking to see Mike admit that possibly not everything is protected by parody “fair use” exemptions. That being said, it’s sort of a soft “wondering” rather than an outright “seems bad”.
While there is some parody here (a bit), the reality is that that commercial aspect of the store, along with it’s slavish copying of the materials tends to lean towards being duplicative, rather than a parody. Slapping a small “dumb” on everything isn’t exactly massive parody, rather more along the lines of a silly tee-hee joke that got played out in full. That they used all of the same materials, the same look, the same feel, and so on puts them very close to the point where some brand confusion could exist.
Put another way: This is one that if it went to court, they have a good possibility of losing (at least on the look and feel issues). For people looking to bust copyright (and such) wide open, this is probably a bad case to get behind.
Let Nathan tell you himself
http://www.youtube.com/watch?v=Bo_deCOd1HU&feature=youtu.be
But is it funny? (yep)
Weird Al is not the right comparison
I love how they use Weird Al Yankovic as an example of parody.
First, Weird Al changes the lyrics enough to fall under the “transformative” rule. He doesn’t just re-record Michael Jackson’s song as “Dumb Beat It”, he actually writes all new-lyrics to so with the music.
Second, and most importantly he gets permission from the artist or label. Did “Dumb Starbucks” get permission to do this?
Third, almost as important he pays the original artist a royalty. In fact, Weird Al got into a little trouble when he recorded a parody version of “Gangsta Paradise” because the artist claimed he didn’t give Weird Al permission. Yet the artist reversed his position when he saw the payment checks from Weird Al. All of the original artists usually see their songs and CD’s go up in sales when Weird Al releases his music, which brings in even more money.
Because of these, artists think it’s an honor to be parodied by Weird Al. In fact, Mark Knopfler (of Dire Straits) said Weird Al could only record a parody version of their “Money for Nothing” if he played guitar on it!
Maybe the Dumb Starbucks people show watch VH-1’s “Behind the Music” episode on Weird Al before using him as their example.
Re: Weird Al is not the right comparison
Second, and most importantly he gets permission from the artist or label. Did “Dumb Starbucks” get permission to do this?
Fair Use doesn’t require permission from the artist whatsoever. Requiring permission first would leave Fair Use useless and Fair Use is required to keep copyright from running afoul of the First Amendment protections on Free Speech.
Weird Al usually asks for permission because it’s easier and cheaper than facing an infringement lawsuit – even if he won and it was found to be Fair Use.
Even so, Weird Al HAS used songs without permission on occasion because he believe the usage to be Fair Use.
http://abovethelaw.com/2011/04/fame-brief-weird-al-fair-use-and-the-lady-gaga-saga/
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Plus, by securing permission, Weird Al gets perks like Greg Kihn appearing in his “I Lost On Jeopardy” video and Mark Knopfler playing guitar on “Beverly Hillbillies”.