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Comment by paulgb | Hacker News Reader

Weird Al does not rely on fair use, he seeks permission from the rights holder[1].

I don't think their reading of fair use is correct here. They talk about the copyright doctrine, but the trademark doctrine is entirely separate.

Unlike the copyright doctrine, under the trademark doctrine, the commercial aspect of this works against them: "In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark"[2]

(disclaimer: ianal)

[1] http://fairuse.stanford.edu/overview/fair-use/cases/ [2] http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

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I think these people are also being disingenuous about their classification of their "business," stating plainly that they are attempting to skirt trademark law by being some kind of art installation. Either it's a parody with permission from Starbucks (which neither party to the agreement is required to inform the public about) or they're going to be in trouble.

A bit more tangential to the topic, there are an awful lot of details missing from that Stanford link about Weird Al's work.

He can write completely different lyrics and publish them all he wants without getting permission or paying royalties. If he chooses to record his own lyrics (which he holds the copyright on) to the same tune as the lyric he parodies, then he becomes responsible for paying royalties on the musical composition only. Once a song has been recorded and published, U.S. law compels licensing to anyone else to also record and publish their version of that song at specified royalty rates to the original lyricist and the original composer (compulsory licensing.)

Weird Al does seek permission. This is simply a gesture of good will on his part. He is in no way required to seek this permission. He writes unique lyrics to which he owns the copyright, records them to the original tune (owing compulsory rates to the original composer), and he's completely legal without ever having to have sought anyone's permission. And "fair use" never enters the equation because copyright law already compels such licensing.

Dumb Starbucks is a parody of parody. A meta-parody.

Actually I think the compulsory license does not apply if it is a derivative work, you would need permission from the publisher.

If the work can be defined as "derivative," then you are correct. So how do we define "derivative" when it comes to lyrics? Are all limericks derivatives of the original simply because they have the same pattern? I suspect the definition a judge would use would take into account how many words from the original lyrics appear in the exact places in the parody lyrics.

Comparing Weird Al's Amish Paradise to Coolio's Gangsta's Paradise, I'd say Al is pretty close to that derivative line. If I were the judge, I'd probably rule for Al in this specific case. And this is the reason Al gets permission - let's avoid all this nastiness and just do what we love.

Though Weird Al could rely on fair use. In his own words [0]:

  "My parodies have always fallen under what the courts call
   “fair use,” and this one was no different, legally
   allowing me to record and release it without permission.
   But it has always been my personal policy to get the
   consent of the original artist before including my
   parodies on any album..."

[0] http://alyankovic.wordpress.com/the-gaga-saga/

One that you might note in your argument is how the store so far has not sold anything - it has merely given away coffee as part of a supposed "grand opening".

That makes the commercial infringement part less plausible.

Sure, the handout talks about selling stuff. The handout may not be what they use to defend themselves in court if it comes to that.

Eh, if the starbucks spokesperson is quoted as saying "Its obviously not a Starbucks," they ~obviously~ don't have a case with regards to trademark infringement, since ~obviously~ consumers aren't being misled or whatever.

You're speaking about the "likelihood of confusion" standard for trademark infringement, I presume.

If a company employee admitted to a fact that was damaging to the company's case, then that could be a real problem. The spokesperson's judgment of the "obvious[ness]" is just an opinion, though, rather than a factual admission. The courts aren't likely to take that opinion as gospel. In other words, that statement won't short-circuit the court's normal process of evaluating the evidence and determining whether infringement has occurred.

Given that, who would win? I don't know. I'm just saying that the spokesperson's statement doesn't automatically scuttle whatever case Starbucks might have.

Also worth nothing: Another possible claim would be trademark dilution, which, unlike infringement, doesn't require likely consumer confusion.

Or, maybe it's "obviously" not a Starbucks because the owners of Dumb Starbucks Coffee already contacted Starbucks and worked things out and keeping mum on the topic is part of the agreement until the punchline is delivered some time in the future. That said, if this were the case, you'd think the PR response would be even less information-- silence, or "we're looking into this" and leave it.

Also, reading "obvious" as "obvious to the general public" rather than "obvious to the person I'm speaking to right now: a journalist specifically asking for comment because they already believe it's not a Starbucks" and expecting that interpretation to hold up anywhere that matters is the kind of thing you only see in Internet lawyering.

"Doesn't require likyhood of confusion."

But does require that the misuse be in a different class, IIRC.

And not so much trademark as trade dress. Knew the lawyer who argued the case for Taco Cabana in front of SCOTUS.

> But does require that the misuse be in a different class, IIRC.

It's not a requirement. Rather, the statute states that it can be in a different class. But dilution and tarnishment can occur in the same class. From 15 USC § 1125 (c) (1):

"regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.?

> And not so much trademark as trade dress.

Yes, both trademark and trade dress could come into play here. Trademarks come in because the name "Starbucks" and the logo were used (and possibly in relation to other marks, depending on the facts). Trade dress usually refers to more nebulous attributes that software people would call "look and feel." It's relevant to this case because the overall design aesthetics of Dumb Starbucks mimics that of Starbucks.

What about all those cheesy parody t-shirts people sell for profit?

E.g.: http://i.imgur.com/AtIbWVe.jpg

Aren't those legal parodies of protected trademarks?

Selling a t-shirt with a parody logo of a company isn't the same as a company presenting itself with a parody logo of an another company in the same space.

Then what is "Scroogled"?

Unless your business is clothing; see http://en.m.wikipedia.org/wiki/The_South_Butt

And The South Butt lost

They lost? I didn't get that from the wiki:

"The court ordered mediation in the case, and on April 1, 2010, the parties reached a closed settlement agreement."

yea the south butt stopped operating

Later in the article you'll read where The South Butt admitted breaking the agreement.

They broke the settlement agreement, that doesn't mean they lost the original court case. Them breaking the settlement agreement has nothing to do with creating case history for other intellectual property cases. Them breaking the agreement is a completely different issue than anything else going on in the article.

The commercial nature of the alleged infringement it doesn't necessarily determine the outcome. So you could have one case where the judge rules for the plaintiff because the use is commercial, and another where the judge rules for the defendant despite the fact that the use is commercial.

they so far have only been giving away the coffee... so there isn't a commercial aspect yet.

Good point, I was responding directly to the wording of their FAQ which implies that they plan to sell coffee at some point.

Price (inc. zero price) is not he test for whether actions are commercial. Usually the test includes a measure of whether the actions are damaging to the commercial nature of the offended party in a suit.

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