This week there is another big test of copyright and how far you can go using someone else’s copyrighted material.
Enter Dumb Starbucks.
A comedian (unconfirmed identity at time of this writing) decided to test just that and set up what looked like a Starbucks coffee shop in Los Angeles. It was called Dumb Starbucks, all menu items were prefaced with ‘dumb’, for example, ‘dumb cappuccino’, ‘dumb espresso’, etc. Even the in-store easy listening CDs got the treatment (‘Dumb Jazz Standards’). And they gave everything away for free!
The comedian claiming responsibility for this ‘new shop’ said he was not breaching copyright laws as he was relying on the ‘fair use’ exception of ‘parody’. Starbucks is suing him anyway. The question is will they succeed?
There are two issues to consider with this copyright case and its potential for success:
Fair use allows parody
This is an exemption to copyright law that you cannot contract out of as a copyright owner. It gives a right for someone to use a person’s copyrighted work in a limited way for ‘comment, critique or parody’ in certain circumstances and without their permission.
There are strict requirements to meet and to be able to rely on this exception. The requirements are based on a four factor test which looks at:
- the nature of the use of the work and parody,
- the amount of the original work used,
- the nature of the resulting or derivative work,
- and the purpose of the use.
It’s relatively difficult to meet this test and to know if you will pass, so be careful if you are relying on this exemption.
Does parody apply to trademarks?
The second issue is how these exemptions may be applied to trademark registrations. Parody is a protected form of speech for copyright use but there is no clear-cut definition of what and how this may apply to trademark infringement.
Trademark infringement cases typically are determined on whether the item or advertisement is likely to confuse consumers about where a company’s goods come from. Further, big companies have often been successful in using their trademark registration and law to shut down the parody with the argument that either customers were confused or that the parody diluted the effect of the original trademark.
This particular Dumb Starbucks case will have to be judged on its merits and facts and will likely form its own precedent.
It’s a difficult one to judge, as how can you use parody without bringing up an image or idea of the original trademarked/copyrighted material?
Have they really breached any laws by adding the word ‘dumb’? Are they able to use the same menu, logo and design just because they added ‘dumb’ before everything? Perhaps something we will only know once this goes to court, which Starbucks vowed it will.
In the meantime, Dumb Starbucks has been shut down (temporarily) due to lack of a health licence, maybe to open again pending trial. Free coffee anyone?