Devo sues McDonalds
Devo is suing McDonald's over New Wave Nigel, a toy that the fast food restaurant gives away with some Happy Meals. New Wave Nigel is part of an American Idol-related line of freebies based on various genres of music. From AAP:
Devo sues McDonald's (Stuff.co.nz, thanks Tara McGinley!)"We are in the midst of suing them," (Devo's Jerry) Casale told AAP.
"This New Wave Nigel doll that they've created is just a complete Devo rip-off and the red hat is exactly the red hat that I designed, and it's copyrighted and trademarked.
"They didn't ask us anything. Plus, we don't like McDonald's, and we don't like American Idol, so we're doubly offended."
At least it wasn't Fuddruckers, as featured with a somewhat-different name in Idiocracy!
Another contender would've been Mike Score's 80s hairstyle; but not as easy to geometrically model as the Devo hat.
They were just sharing copies of the hats. ;)
I been dipped in double meaning.
I been stuck with static cling.
Think I got a rupto-pac.
Think I got a Big Mac attack.
Devo - Too Much Paranoias
"We don't like McDonald's, and we don't like American Idol, so we're doubly offended."
Well, I don't like McDonald's, and I don't like American Idol, and my name is Nigel, so I'm trebly offended.
I can has lawsuit?
Clean 'em out Devo!
Yeah, but do they actually have a case? This reminds me of when the girl from DeeLite tried to sue Sega for sticking her in a videogame (Space Channel something). They'd actually been negotiating with her to license her likeness and then decided ah, the hell with it and just used what they wanted.
And that didn't turn out so well. IIRC, she's going to be broke for the rest of her life paying Sega's legal bills.
If the hat is a trademark then the dumbass McD character almost certainly infringes that trademark. I didn't think clothing could be copyright, but if the character is made to have the appearance of a Devo member then that is an infringement of their celebrity image.
Copyright is extortion.
Um, yeah, McDonalds, but it's still extortion.
@NORES
They have a great case, because the hat was trademarked and its a pretty obvious intended association on the toy creator's part to reference Devo. It's not like they have a country singer or a clown wearing the hat - but a 'new wave' musician.
In the Space Channel 5 case:
- there was no trademark or copyright involved
- the singer from deelite claimed the game was based on her after a likeness deal went sour. in reality, the game was released in japan previously, no one there knew who she was, and the deal was to use her song in the game -- not base a character
I think this is most similar to a more recent case:
Recently the US District Court in NYC okayed a lawsuit against Mars by 'the naked cowboy'. The cowboy has a trademark on his costume of a white cowboy hate + boots + underwear with an acoustic guitar. M&Ms dressed up one of their characters in that getup.
In interviews , the cowboy brings up the fact that the usage of his trademarked likeness implies an endorsement -- which it does.
Seeing that McDonald's/American Idol toy , I instantly think of Devo and no other band -- and then question "why the hell would they sell out and license themselves to that."
In the M&Ms case, Mars was trying to claim a defense of fair use & parody. i'm sure mcdonals/american idol will do the same -- and i'm sure they'll both lose. it's a blatant instance of cashing in on someone else's likeness - which ad agencies do nonstop.
copyright is not the point here. McDonalds is evil.
Devo? I thought it was Spaceman Spiff!
Prior to the hat being a hat, wasn't it a planter years before Devo stuck them on their heads?
AND, if you go to the whole article... "Casale said it was ironic the world's largest fast food chain should appropriate the image of a band known for taking aim at the dysfunction and herd mentality of American society."
But didn't they sell their song for a Swiffer commercial?
Oh Devo, get over yourselves.
Whats a devo?
Whip 'em good!
whew, torn on this one. i'm a huge devo fan, but i'm a bigger fan of killing sue-happy nimrods. then again, some kid might get this in a happy meal and think that's it's official devo swag. then again, does that hurt devo?
i'm gonna hafta flip a coin on this one.
are we not men?
I'm pretty sure that Mark Mothersbaugh has done music for McD
TV commercials in the past.
Haw haw haw @ the last line. I'd be doubly offended too.
we are devo.
I think it's sad that so many people here seem to be so blindly devoted to the cause of tearing down all copyrights and not suing people over things (or however you would describe it) that they can't tell a legitimate lawsuit and an inappropriate copyright violation when they see one.
Devo is not "becoming the monster," here. A major corporate entity has outright ripped off their image, and a part of their image that they'd trademarked. The band has a right to not want their likeness associated with corporations that it detests. Plain and simple.
'a' devo is de-evolution.
"Are we not men?
We are Devo.
D-E-V-O."
Trademark, sure. But can you REALLY "copyright" a HAT? (I thought that's what "Design Patents" were for...)
The case here is by no means clear. I think #10 jonathan nails the crux of the suit: Devo doesn't want anyone to think they sold out to a corporation. But these likeness cases swing either way. I'm not so sure how well the trademark case will fly either.
I have no opinion about this one either way as written; it seems that Devo was wronged, and I believe trademark law is important (more important than copyright law, certainly), but I think likeness suits are a terrible idea. Plus, you can't copyright a fucking hat. Maybe you can trademark one, but it makes no sense to copyright it. (Of course, our ingenious congress is trying to make it so you can, which proves exactly nothing about whether you should be able to.)
If likeness isn't a factor (and maybe it isn't, article doesn't state clearly), then McDonalds should lose.
#11 @takuan: they're just a corporation. call them soulless if you want, but I don't think they rise to the level of evil.
I'll merely add I'm thrilled with how 1-hit wonders were very common during the New Wave era, Devo's popularity continues to coast the waves of time. They've even spawned a next generation!
Speaking of, here's the obligatory connection between Devo and Disney (the topic of the last BB post):
» http://en.wikipedia.org/wiki/Devo_2.0
"I'm pretty sure that Mark Mothersbaugh has done music for McD
TV commercials in the past."
Yeah, Klasky Csupo did a couple of straight-to-video cartoons for McDonald's called "The Wacky Adventures of Ronald McDonald". Mark and Bob Mothersbaugh did the music for it.
very well; The Clown is Evil, the corporation is merely a soulless, monstrously wicked, exploitative predator.
McDonald's food is soulless for people who could care less what they put inside their bodies for sustenance. Do we *really* want to know what is in a "chicken McNugget"? Class-action suit I say - get XTC involved for the use of the name 'Nigel'.
Lucas should sue
http://en.wikipedia.org/wiki/Tower_of_Hanoi
Turn it around: if Devo were to appear in concert or a music video, wearing red outfits with big yellow Ms, and sang about the evils of fast food, do you think McDonalds would even hesitate in their lawsuit?
Have kids really heard of Devo?
This reminds me more than anything of the Tom Waits-Frito Lay lawsuit.
http://en.wikipedia.org/wiki/Tom_Waits#Lawsuits
Worked out rather well for Mr. Waits.
"didn't they sell their song for a Swiffer commercial"
Yeah, do you have a point? They sold it.
It I sell somebody a pizza does that mean you can root through my fridge and take what you want because I'm not artistically pure in your mind?
Yes! Can has pizza!
uh, trick question?
The mixed reactions expressed above are a good illustration of how contemporary worries about copyright (etc.) policy are closely connected to worries about the power and dangers of big corporations.
If Devo was aggressively suing a minor blogger, I suspect few BoingBoing readers would be sympathetic. But because their dispute is with McDonalds, some folks have mixed feelings.
For IP-minimalists, situations like this raise a serious policy question – would one permit a huge corporation (like McDonalds) to have the same rights to reuse/remix/reappropriate that an individual ought to have? If there is a line, where and how ought it to be drawn?
On a more abstract level, the situation also illustrates how attitudes towards IP are often driven by contemporary issues. In this case, I think, by anxiety and discomfort over corporate power.
Other IP debates might be worries over globalization or nationalism. This is an old phenomenon, especially with regard to nationalism.
But every era has quirks – for example, I can point to specific incidences in the nineteenth century where people’s opinions towards US copyright controversies were shaped by then-contemporary arguments over slavery and abolition.
(In a nutshell, a few slavery apologists supported International Copyright because they thought that it would limit the availability (in the US) of reprinted materials authored by non-US abolitionists. c.f. Pimps and Ferrets, 94-5.)
(How convenient it must be to compartmentalize your thinking like that.)
I think you're missing the point of the whole "copyright is a dangerous monopoly power" argument. The wrongness of copyright isn't limited to the MAFIAA; copyright is wrong for anyone to rely on, even Devo.Ahem, "When a bad spill comes along, you must swiff' it."
re: the Lady K vs. Sega case
http://www.ladykier.com/segacase.htm
The link above contains the evidence that was submitted.
if you think I'm passing up a chance to take a slash at MCDevils - nope!
@ #35:
Well, aren't those remixing rights a matter of NOT using them for profit? I think Mickey-D's is likely making profiting from their happy meals, and not in the name of art...
the REAL one
http://farm1.static.flickr.com/113/307659677_11b6aef398.jpg
the Plan
http://www.informationarchitects.jp/wp-content/uploads/2006/11/baby-ronald.jpg
"If only you knew the power of the dark side."
my very first visit,a lifetime ago. Could I get it without relish? NOOOO!
http://content8.clipmarks.com/blog_cache/tony1960.wordpress.com/img/70942293-C377-420E-89D9-E5B91C024E61
and when they finally brought it to counter; it was COLD! And then they wouldn't honour the coupons they had plastered the neighbourhood with; free order of fries - one per customer my ASS! BASTARDS!
I won't tell you what the disgruntled employees do in the pickle pail.
So true, Eric.
I have seen the Ronald McDonald trademark "ripped off" in many unauthorized ways that please me, e.g. in Ron English and Billboard Liberation Front artwork. The very nature of that artwork style (modifying billboards) means that some viewers will likely get confused and think it was sponsored by McDonalds, so it's an illegal use of the trademark. Perhaps defamatory too. I'd hate for McDonalds to sue even though they probably are legally entitled to do so.
Yet I feel like Devo has a good case and I'm on their side against McDonalds.
It is big guy versus little guy, and there is actually some court precedent for the idea that when one party is much more powerful than the other (usually the big corporation), that the other side gets some legal accomodations just for being the underdog.
I agree that this is a trademark issue, and copyright has nothing to do with it.
@ 24 Cory:
We're not talking about a Dischord Records band or a scrappy DIY upstart. Devo signed to Warner Brothers Records—a corporation—in 1976.
Post-Devo, Gerald Casale directs commercials and Mark Mothersbaugh has composed music for commercials.
Devo was NEVER a non-commercial/non-corporate band.
The issue with this lawsuit is simply trademark infringement. If they were asked for permission to use this caricatured version of them as a toy, I don't think they'd say yes... But I'm not sure they'd say no.
Love them, but they are far from indie. They are as commercial as any other act, they just dress it up a bit differently.
I'm sorry Devo, I can't sympathize.
Maybe it was trying to sell Pioneer laserdisc players.
Maybe it was the swiffer commercial.
Maybe it was Devo 2.0.
Yes, it was Devo 2.0.
You're losing cred, so don't even pretend thats what it's about. It's about the money.
"and he...had a job, and he...wore a hat, and he,,,brought home the bacon so that...no one knew!"
It'd be better if XTC sued McDonald's about their plans for Nigel.
it's Pajama Sam dressed in his DEVO costume. Humongous Entertainment should get in on that action.
Response to #33- "Yeah, do you have a point? They sold it.
It I sell somebody a pizza does that mean you can root through my fridge and take what you want because I'm not artistically pure in your mind?"
What does rooting through your fridge have to do with anything?
The point is, and obviously you didn't really pay attention to the quote, Jerry Casale said they don't like "herd mentality". Selling a song to promote a product for the herd to buy and allowing your music to be associated with a cleaning product is at odds with what part of their argument is about (even though he regrets the decision after the fact). Not to mention the Diet Coke commercial they were in. I don't care who they sue. I don't care about copyrights or trademarks or anything else when it comes down to this story. I don't really care about McDonalds or Devo. And I certainly don't care about artistic purity. I think these silly little toys would have gone virtually unnoticed and eventually end up in the nickle bin of a yard sale unless Devo, who is currently touring, decided to sue. Hypothetically speaking, if I got one in a happy meal I probably would go pick up some Devo music for nostalgia sake. But I don't eat at McDonalds and I don't have children so I don't see myself buying any Devo music.
This caricature of a stereotypical "new wave" rocker seems to fall under the domain of parody. That's a valid defense for copyright; less so for trademark.
But the irony is that McDonald's might actually want to lose this case, lest they strengthen the future cases of people who rip off McD's trademarked symbols.
Why do I have the feeling that many of the commenters in this thread have never created anything? Perhaps you would enjoy having your own creative efforts used to advertise an organization that you revile. Or perhaps not. If you've never done anything that might interest anyone else, we can only speculate.
why does Devo deserve to win?
because this:
http://www.youtube.com/watch?v=k3MxuDk7wqo&feature=related
standing by itself, has more value than anything the profit seeking and exploitation that is McDonald's hallmark has accomplished in a half century
I wouldn't think that a judge would take to kindly to a suit from someone who has publicly stated they are, for all intents and purposes, suing out of spite.
Lawyers out there - will it (or could it) hurt their case that they are being very public about hating McDonald's?
"The very same people that wanted nothing to do with Devo and looked down on Devo and condescended (to) Devo... enough time's gone by that they go, 'Hey, you know those guys are synonymous with what was new about New Wave,"
I don't think it's as much as a copyright issue than it is a principal issue.
Sue the normals! They do NOT have Slack!
McDonald's is Anti-Slack!
Praise Bob!
You know, kinda like Microsoft Palladium.
Or, precisely the opposite of tools for conviviality such as the Personal Computer and Free Software.
Zuzu,
You persist in viewing life through a pinhole bounded by theoretical abstractions.
@ #56:
why does Devo deserve to lose?
http://www.youtube.com/watch?v=t-X7NhbBpCs
the worst corruption is when the bopping
2.0 kids change the original, last stanza from:
"freedom of choice is what you got,
freedom from choice is what you want"
to this insipid and redundant:
"freedom of choice is what you got,
freedom of choice is what you want"
the whole moral of the song is lost.
("Shana, you ignorant ----!")
They were just sharing copies of the hats.
and
Copyright is extortion.
among others attempt to point to some sort of hypocrisy on the part of BoingBoing. As far as I understand BB does not advocate piracy of any kind nor the theft of copyrighted materials. They urge people to voluntarily release creative content under various CC licenses with the belief that is in the best interest of the creative professional.
And one must bear in mind that Zuzu comes from a rather extremist economic theory that makes Libertarianism look sane (which it is not).
I myself aspire to be a creative freelance professional someday but I look in despair at how large studios treat freelancers. It is not at all unusual to submit a proposal to a large studio and have them reject you, then they turn right around and use your idea and you get nothing. Why do they do this? Because they can. Because IP law is so byzantine only the big boys can play. Everyone else can go suck a big fat one. Which just how they like it.
And what about jQuery ? ;)
@ 23 Epicanis said
Well, technically they're not hats but "Energy Domes."
http://en.wikipedia.org/wiki/Energy_Dome
But I am with Epicanis on this one. If this *was* covered by any patent they are going to be long expired. After a cursory search I fail to find any patent ever issued. Then there is trademarks. I fail to find anything other than their band name trademarked which astonishingly was done so in 2005. Interestingly there is a "Devo" clothing company that seems to be unrelated and I question it's validity. That leaves copyright, and the only thing I am finding is the band's songs.
I honestly think that McDonalds had some suits look into this before they made up that toy, and that the band was asleep at the switch here. Besides the whole question of copyrighting objects or applying a patent-trademark-copyright soup to gain additional protection ala Disney (the courts have been smacking down this notion lately) I don't see anything here. The only way I see trademark working is if it was aligned with music somehow, but I fail to find any trademark application even. I would like someone else (like an attorney) following up on this.
The only energy I'm getting from these domes is a bunch of hot air, and I bet McDonalds is gonna whip them good. Devo, get better suits, and accept the fact that your flower pot hat has entered popular culture and serves to help you more than the few pennies than the royalty you're gonna get off a cheap toy.
McDonalds FTW on principle.
I wasn't pointing to hypocrisy on anyone's part.
I was stating a fact: copyright is extortion.
For whatever it's worth, I love those Happy Meal toys. I own the whole set. The Devo one doesn't give you a sense of the clever design reflected in the whole set, but they're really great looking toys. My guess is that it was more of a tribute to Devo by the designer of the toys and McDonald's was pretty much clueless. I thought it was a bonus that one of them had a Devo hat, actually. The Devo hat is such a cultural icon, and every time I see it it makes me smile.
Now I totally can't stomach McDonald's poor excuse for "food". I bought the toys all by themselves--they gave me all of them for 2 bucks. American Idol represents all that I loathe in this world about network television, but I love these toys.
I don't know how I feel about the lawsuit though. I like Devo and everything they represent and my impulse is to rally behind their cause, but, you know, the toys are really cool.
I don't have anything to say about copyright that hasn't been shrieked here already, but I had to drop in and try to be the 69th comment in a thread about DEVO and McDonalds. The temptation was too great.
Carry on.
Missed it by *that* much.
You owe me.
aaah, and you were so close.
No such thing.
From your ideological perspective, that's correct. Not however, from mine.
marginalization is fun!
Well you're the one putting your economic ideas out there as undisputed fact so I figure they're open for criticism. If you build a house and no one wants to live in it is it really that great of a house? Are there any working i.e. non-tenured followers of von Mises?
Libertarian economic theory, of which von Mises is an extreme example, is not highly respected. It will be much less so after the credit crisis collapses the global economy. Which can be laid squarely at the feet of nutcase libertarian and Randroid Alan Greenspan. I know, I know, he isn't pure enough for you. Yeah, well, that's just another big red flag as far as I'm concerned.
The only people who really behave as rational individuals acting exclusively in their own self interest are sociopaths and economists.
If we go to the courts for every infringement
of visual copyright to address "How one was
hurt by this copying" we would no longer have
Santa Claus as someone surely lays claim to
that red suit and white beard.
http://dev.null.org/scrapbook/2005/0616_jackson.jpg
I might add that my Mom had a plant vase
exactly like that in the 1930's so!
Seriously though:
http://bp3.blogger.com/_julY3XAJ89c/SBiULHNpjOI/AAAAAAAAAMs/plrDXtd136U/s1600-h/idols.jpg
How can you not love these? Especially the one with the purple fro. There is the fact that the American Idol logo is indescriminately slapped on, but these are great toys!
That said, I get the impression you have a bee in your bonnet or are otherwise having a bad day, so I'll try to eschew a protracted tangential economics debate in this thread. Maybe some other time in the #boingboing IRC channel?
"The only people who really behave as rational individuals acting exclusively in their own self interest are sociopaths...."
I'm stealing this, word for word. Wonderful!
Guess nobody here has a trademark either. You are aware that if you don't defend them - they have a nasty habit of going into the public domain.
You DID know that - DIDN'T YOU?
Sorry - but thanks for playing "come rape me legally!"
Copyright is extortion? WTF? My *union* and I copyright my plays. I'm sort of like a property owner, a two-bit landlord. How is it extortion to charge a theater company a little rent to live in one them for a few weeks? They can go live somewhere else, plenty of goddamn vacancies...Grumph.
"Property is theft."
But it's a fact. Didn't you hear?
Dv! Whny Btt Crybby! W! Bg vl Mc D STL my trdd ht.
We NEVER eat a McDonalds, but just happened to be on a long car trip with my toddler and stopped at one a couple of weeks ago-- sure enough, I got this toy. Maybe if he wins his lawsuit I can sell it on ebay someday. HA!
Seriously, though... my toddler HATES it. With a passion. If I hand it to him,make it play the little music, he throws it angrily across the room.
And the first thing my husband said when he saw it was "Why would Devo ever go on American Idol?"
So the little hat does conjure that in peoples minds.
Ww wht crtld f hrs pp. S thy r gnn s vr trdmrkd flwrpt? Why not sue the Chinese costume company that makes the flowerpot hats I see every Halloween in the Dollar Tree? I mean really, an *ahem* artist that created a flowerpot hat by turning it upside down and putting it on a guy's head??? Tht's th hck cllng th kttl blck. Ths s jst dmb. Bt gss f yr clm t fm s frkn psd dwn flwrpt thn th lmnss jst bbbls vr snr r ltr. Smlr t th wll-tmd cpyrght lwsts gnst Ggl ftr th prchsd Ytb. Wt ntl thy hv mny thn s... gt t. FRWNY FC
@ #12 Eadwacer:
I saw what you did there. But I think DEVO is leaving Bill Watterson alone because Calvin's use of the hat only made it cooler.
There is a thing called "trademark disparagement". For example Pepsi has managed to trademark the particular color of blue they use in their logo, on top of trademarking their spheroid logo, their name, their red white and blue color scheme... A competing cola could maybe use one of these protected elements in their product packaging and get away with it, but it is for a judge to decide when the line has been crossed and enough of the components that make up the Pepsi brand have been unlawfully aped/conjured.
Basically disparagement is a lesser form of infringement, as I understand it.
In this case you have a "new wave rocker" wearing a hat that no musical act besides Devo™ has ever worn. It may not be a "registered" trademark, but that doesn't mean it is not a Devo trademark. And the suggestion (of Devo) is blatant, as blatant if not moreso than the naked cowboy dude.
Q: Are We Not Men? A: We Are Happy Meals!
Copyright is a choice.
Trademark is a choice.
Creative Commons is a choice.
Like religion, chose one but don't damn the other choosers.
I honestly believe this lawsuit came about because they never got an opportunity to profit from the McDonald's toy.
Devo's always maintained that they're not selling out, rather using the corporations to get their music out to the masses. However, I suspect that's just what they say to keep from alienating their fanbase.
Yeah I agree with Kashmir Kong above.
Until I see more about this lawsuit I refuse to make a judgement on the case.
If Devo were genuinely Punk (like, say, "Crass") then I wouldn't doubt for a second that the case had merit. Otherwise.... show me the money, yeah?
I'm with #51
http://www.youtube.com/watch?v=0C6bVckO_CM
ah... the tom waits school of making millions
remember folks
TOIL IS STUPID
Re the picture in #77: I think what separates New Wave Nigel from the other ones is that it's a very, very obvious Devo nod. The other dolls look pretty generic - there's a disco one, a pop one (? I can't tell what exact genre they were going for), a hip-hop one, and a punk one. The only thing about New Wave Nigel that isn't specifically Devo is the space glasses.
Say what you want about Devo having sold their songs to Swiffer and making Ronald McDonald cartoons, or even that the Energy Dome hats have become a 'pop culture icon,' but the outfit and design just screams Devo specifically and if they didn't give McD's permission to use the image then I feel like they've got a case.
This is not to say that the toy isn't adorable, though, and that I wouldn't take one were it offered to me. Love the colors.
McDonalds toys are garbage.
I know people collect them, but all I see is garbage.
Devo really should get satisfaction for this.
http://www.youtube.com/watch?v=4Ny7CkvfjI4
I'm glad they decided to sue, they had originally said they were going to let it go.
They couldn't have let it be having something as iconic as the energy domes, people would absolutely think Devo endorsed this crap.
I'm seeing them on the 31st, I'm so excited
Just to clear things up, since no one has actually stated so,
you CANNOT copyright fashion designs.
http://www.copyright.gov/docs/regstat072706.html
http://www.styledash.com/2008/02/15/fashion-copyright-issues-go-to-congress/
So this matter is an issue of trademark and/or patents, though as a previous comment pointed out, the patent would be expired.
That's my $.02 on the issue. Carry on.
I'm rooting for devo!
I see you have a bee in your bonnet
Fair enough. I tend to say things in very stark terms and I guess that is trollish behavior. I'm just trying to figure things out and from what I've seen I think I can safely ignore Ayn Rand's economist.
Marja "I was stating a fact: copyright is extortion."
You don't even know what copyright and I doubt you've ever created a thing. You just say that because it justifies your theft.
It may be cliché, but I highly recommend reading Thomas Jefferson's letter to Isaac McPherson:
i'm going straight to mcd's to get one of those dolls. collectable !
alternate link to swamped AFSME vid zuzu pointed to
http://www.youtube.c