BMG Settles With Toymaker Over Parody Song Used To Sell Pooping Unicorn Toys
from the aw-crap dept
Back in February, a copyright case that somehow made it past me, but embedded below, was filed by BMG against MGA Entertainment over a song the latter used for one of its toys. That song was called “My Poops” and is a parody of The Blackeyed Peas’ “My Humps.” You can go hear the song, which MGA used in advertising for the toy, in the link above. There are similarities, yes, because this is a parody song.
Parody that could have fallen under fair use protections, had the suit concluded at trial. Sadly, this is yet another one of these copyright suits that ends not with any clear results on the question of parody protections, but instead in a confidential settlement.
U.S. District Judge Edgardo Ramos terminated the case in an order published on Tuesday after the two sides told him that they had resolved the dispute.
Terms of the settlement were not available, and representatives for the companies did not immediately respond to requests for comment and more information on Wednesday.
Now, the initial suit demanded $10 million in damages be paid to BMG, so you have to imagine the settlement wasn’t for that high amount. Whether any money changed hands is unclear, of course, but I don’t think it should have. Yes, the toy dances to “My Poops” when you press a button on it. Yes, the company put out a music video featuring the song as an advertisement for the toys. But the factors for a use being covered by fair use are:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
The purpose of the use in this case was parody. It was turning the hit song into something ridiculous, lampooning it all the more so by taking a genuine pop song and turning it into a song about, well, pooping unicorns. The nature of the original work is indeed a creative one, so there’s that. The parody song in question, on the other hand, was something like 30 seconds, representing a small percentage of the total runtime of the original work. As to the fourth factor, well, I’d love to hear anyone argue that “My Poops” somehow has a negative impact on the potential market for the band’s 2005 song “My Humps.”
But we’ll never get to see the outcome had MGA tried a fair use defense. And that’s crappy.
Filed Under: black eyed peas, copyright, my poops, parody, pooping unicorn
Companies: bmg, mga entertainment
Comments on “BMG Settles With Toymaker Over Parody Song Used To Sell Pooping Unicorn Toys”
Copyright itself has become a parody.
parody advertisement
Im not sure you can use the parody defense when its an advertisement. Sure many artists wont say anything, but if they do object I dont think you have the right to use it in advertising.
Re:
Why not, as making money from the parody is included in fair use.
Re: Re: the difference
The purpose of copyright is to encourage creative works. I think parody for the purpose of entertainment is a gain for mankind whereas advertising is only a gain for the seller.
Re:
I don’t know about advertising, but it is definitely legal to use parody to make money, otherwise Weird Al wouldn’t have a career.
We just need to get rid of settlements. They make a joke out of the court system. Let the courts decide how the law should be interpreted, as they should be doing.
Re:
I’d go the other direction: this should have been settled long before lawyers and the courts ever got involved. When a suit like this goes before the courts, a first question should be “Have you tried to work this out amicably already? Have you settled on the issues of the case to the point where you require the courts to decide on point of law?”
After that point, any party still willing to go through the courts should have to carry the case to completion, AND pay court costs for both sides if they lose.
If both sides want to go to court, they both pay their own legal fees.
Re: Re:
Then a trademark bully would seek a settlement on purpose (which is kind of the status quo). The potential amount of money lost in court would be even bigger for a small business on the defendant end, further convincing the defendant to settle.
Possible change to your suggestion: If the defendant of a trademark infringement lawsuit loses, both sides pay their own court costs. If the plaintiff of such a lawsuit loses, the plaintiff pays both sides’ court costs.
Re: Re: Re: I retract my previous comment due to a fundamental mistake.
I’m stupid. I misrembered this case as a trademark case instead of a copyright case. Sorry to anyone who read my previous comment. I retract my entire previous comment.
A large copyright holder would have even more leverage to seek a settlement, and usually copyright bullies want a settlement in the first place. The higher potential money loss for a defendant in a copyright infringement case in court would pressure small businesses (or individuals or small groups) to settle.
Copyright law is unbalanced. The damages for losing an infringement case (up to $150K per infringement!) are way higher than the reward for winning a false infringement claim case. A winning defendant might go bankrupt anyway due to court costs. Suing back and proving that a copyright holder sued in bad faith (e.g. despite considering that fair use likely would apply) is a very high bar (on top of the court costs for the previous defendant to sue back), yet copyright holders can demand high statutory damages without proving wilfull infringement and without proving any actual damages.
Copyright law needs an overhaul. The cost of losing a copyright infringement suit as the plaintiff should be comparable to (at least 90%) the cost of losing the case as a defendant if the plaintiff seeks statutory damages.
Tangential information:
In the LimeWire case (Arista Records LLC v. Lime Group LLC), Arista Records (owned by Sony BMG at the time! the BMG in the article!) initially sought statutory damages of 75 trillion dollars.
result
Although the terms of settlement arent public, whether or not they stopped using the song should indicate who won.