Readers will recall the strange case of “Dumb Starbucks” earlier this year, which initially seemed to pose the question of whether a coffee shop that transparently used the marks and copyrights of Starbucks could claim fair use as an art gallery. It turned out that the entire performance was just that, a lead up to a Comedy Central series that has since debuted. We are not, of course, television critics, but in addition to being hillarious (and undoubtedly tongue in cheek), the full episode is an interesting platform for questions about the players and entities that can claim fair use to copyrights or trademarks over visual and creative works. In the end, the parody/fair use question could never really be answered, but the coverage the numerous news clips that the show included is a reminder of the difficulty of applying art critical concepts to legal analysis.
The solitary coffeee shop that appeared several months ago was seemingly identical to an authentic Starbucks, except that everything simply has the word “dumb” in front of it. The store also had a “Legal FAQ” sheet that claimed the entire enterprise was allowable as a “parody:
By adding the word ‘dumb’, we are techically ‘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 the use of copyrighted material in a parodical work without permission from 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.”
Our take on these FAQs was that they had few points mixed up, claiming an allowance to use trademarks by claiming fair use over copyrighted works (legally distinct concepts). Not only that, but designs—even restaurant designs—can become associated with a particular product or services such that they can also be protected. The real question seemed to be whether Dumb Starbucks was a parody—and whether it was even for real. The store was closed within days, ostensibly on the order of the Health Department, and it was leaked that Nathan Fielder was behind the whole stunt for a new show called “Nathan for You.”
The premise of this show (and others in the series) is that Fielder offers to help struggling small businesses with obviously terrible ideas. Fielder suggests to a small coffeee shop “Helio Cafe” in East Hollywood owned by Elias Zacklin that it make fun of Starbucks and avail itself of parody law (and understanding of which he gleaned from Wikipedia). Fielder gives away the game in ptiching the idea that he wants people to be confused into thinking it might be a Starbucks. Right on cue he consults an actual attorney who tells him that soliciting that confusion is what will expose him to liability (a side plot that underscores the importance of reading what you sign).
Interestingly, the idea of selling “dumb” songs to parody Starbucks’s CD collections seems to have been a genuine collaborative and creative enterprise: Fielder and Zacklin actually wrote and performed some songs (an indelicate play on “I Can’t Get No Satisfaction,” for example).
It turns out that Fielder actually did set up an art gallery in a brick and morter storefront. The works were all transformations (mostly derogatory) of well-known corporate logos. Clearly fair use, and frankly pretty interesting. This was all in service of claiming status as a parody artist.
Fielder then parted company with the original owner he had pledged to help, rented his own retail mini-mall space, and opened the store. He tries explaining to customers that he does not have to follow health codes because it is art gallery (which is of course incorrect).
Where it really gets interesting is as the reactions start to roll in on the store’s second day. Predictable “what is the art”? questions from pundits followed. Similarly interesting is the projection of visitors of their take on consumer issues onto the store and Starbucks.
In the end, of course, the health department did step in, and that was that.
In the final analysis, the best tribute to Fielder’s piece may be that Starbucks—which vigilantly enforces its copyright and trademarks—didn’t know what to make of it at first. Hats off to an original idea that served as a great discussion piece for these legal issues.