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Sunday, 23 October 2011

GaGa gags Goo Goo: a perspective on parody

Moshi Monsters
Reported in the news last week -- but still sufficiently fresh for this blog to investigate further -- was the interim injunction won by pop star extraordinaire Lady GaGa over cartoon character ‘Lady Goo Goo’ in the Chancery Division, England and Wales. Lady Goo Goo, owned by UK company Mind Candy, is one of the characters used in the children’s social networking site, Moshi Monsters. The character is acknowledged on Moshi Monster’s Wikia page as being a parody of Lady GaGa and has gained quite a following of her own, enjoying musical hits on Youtube such as ‘Peppy-razzi’ (a parody of Lady GaGa’s record ‘Paparazzi’).


Lady GooGoo
The High Court proceedings were prompted by the attempted release of a single, ‘The Moshi Song’ by Moshi Music, a new division of Moshi Monsters. Moshi Music had already posted the song on Youtube, achieving over 3.5 million hits, and planned to release it as a single on iTunes. The video of that song can be found here. There seem to be elements of the tune that have lightly mimicked GaGa’s hit song, ‘Bad Romance’ (here), but Mind Candy argued that it would be a step too far to suggest that anyone might confuse the two.  Mr Justice Vos disagreed and ruled in favour of Lady GaGa, preventing Mind Candy from “promoting, advertising, selling, distributing or otherwise making available to the public The Moshi Dance or any musical work or video that purports to be performed by a character by the name of Lady Goo Goo, or that otherwise uses the name Lady Goo Goo or any variant thereon.” However, the Judge did not go as far as preventing Mind Candy from using the Lady Goo Goo character in Moshi Monsters.

Although the judgment is not yet available, The Lawyer reports that Lady GaGa’s counsel argued that Mind Candy had infringed her trade mark and that there was a risk that children would be confused.  This point undoubtedly came about due to Mind Candy’s intention to place Lady Goo Goo in competition with Lady GaGa in the commercial music market: according to The Guardian’s coverage of the story, GaGa’s lawyers submitted evidence that some consumers had already been confused, wondering if there was an official connection between the two. Maybe this confusion was not helped by GaGa’s appearance on US chat show ‘Jimmy Kimmel Live’ (here), where she starred in a comedy sketch ‘promoting’ a line of baby clothes called ‘GaGa Goo Goo’ (alternatively, the more cynical among us may wonder whether Lady GaGa’s PR team has spotted a future opportunity for bringing out a line of maternity wear under this name).

However, on a more objective view, it does seem surprising that genuine confusion has arisen between Lady GaGa and Lady Goo Goo, given that they are so different – not least because one is a cartoon character – and considering that they are targeted at entirely different audiences.

Founder and CEO of Mind Candy, Michael Acton Smith called the ruling a “huge disappointment” and went on to say that he “would have thought that Lady Gaga could have seen the humour behind this parody”

Impact of the decision

In terms of the trade mark infringement claim, an article in The Guardian points out that this ruling may have an impact on tribute bands or characters that have similar names to original acts. The judgment may also be bad news for Mind Candy in a wider sense, as many of their characters are based on other famous popstars, such as Broccoli Spears and Dustbin Beaver, parodies of Britney Spears and teen pop sensation, Justin Bieber.

So, is this the end of the road for parodies generally?

Probably not. In the recent Hargreaves Review of Intellectual Property (“Digital Opportunity: A Review of Intellectual Property and Growth”), Chapter 5 examines updating copyright exceptions for the digital age. The report notes that lack of sufficient defences to copyright infringement can have the effect of blocking innovation and economic growth as the interests of content owners are so protected that other creators are prevented from entering the market. Further, there is a growing disparity between what is permitted or not permitted under the law of copyright and the expectations and behaviour of consumers regarding copyright works. Nothing demonstrates this better than the often difficult and strained relationship between users of websites such as Youtube and copyright owners. In the field of parody, specifically, eyes of consumers collectively rolled when EMI Publishing claimed copyright infringement over a Youtube video created and performed by a group of people who parodied RnB stars Alicia Keys and Jay-Z’s huge hit ‘New York (Empire State of Mind)' with the song ‘Newport (Ymerodraeth State of Mind)’ (for those readers unfamiliar with British geography, Newport is a town in south Wales). The parodied video, costing £100 to make, won praise from all corners of the globe for its humorous take on the highly popular song (see also the earlier IPKat post here).

EMI gave a statement defending its position, saying: 
"When a song is created based wholly on any of our writers' works, those writers need to grant their permission...If that permission isn't granted, then we ask the service in question to remove the song."
 However, many consumers questioned what possible detriment could be caused to the owners of the original copyrighted song by a video that was clearly meant as a joke and contained entirely different lyrics to those of the original. This argument was then taken up by Professor Hargreaves. 

The future for parodies

Since time immemorial the parody has been considered an art form in itself and, indeed, may constitute a new and original work under copyright law where the parody is substantially different from the original work. In the digital age, parodies have become easier to make and to share with a wider audience. The Hargreaves Review explicitly recognised this and noted that preventing works of parody may infringe upon the right to free expression of authors.

As noted by the IPKat (here), in response to the Hargreaves Review, the UK Government appears to have accepted the need to construct some form of parody exception to copyright (although how this would be framed and where the line would be drawn is a different matter). However, even though such an exception would probably prevent the removal of videos such as ‘Newport’, it is unclear how it would help in the GaGa v Goo Goo parody case, where the former claimed trade mark infringement rather than copyright infringement. Perhaps readers have a view? 

The IPKat thanks his good friend and fellow IP enthusiast Fredericka Argent for all her work in constructing this post.

8 comments:

Ana Ramalho said...

I do have a view, at least regarding continental Europe:http://www.ivir.nl/publications/Ramalho/parody_final.pdf

It's because of cases like this that there should be common standards of admissible parody in trade marks and copyright.

Anonymous said...

I am pondering whether or not to seek permission from the IPKat to start a parody blog called IPKant, which would focus upon academic and philosophical analysis of IP law along the lines of what Chief Justice Roberts has reportedly bemoaned:

“Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

http://www.acslaw.org/acsblog/law-prof-ifill-challenges-chief-justice-roberts%E2%80%99-take-on-academic-scholarship

I'm surprised that Republic of Bulgaria hasn't filed a diplomatic protest.

goldenrail said...

The mention of the "Newport" song above sounded pretty interesting. So I went to the linked Kat story on that song only to find the video gone. Not just the video, though, "account associated with this video has been terminated du to multiple third-party notifications of copyright infringement." A quick search of YouTube and I was able to find the song... with a big red note on the video that "This video will likely be pulled very soon by Youtube... so enjoy it while you can."

Isn't fairly easy to get a license for the musical composition when one wants to make a parody like this? Or has Weird Al misled me?

Anonymous said...

EH, what line of business was Weird Al Yankovic in again???

Birgit Clark said...

Reminds me of the famous German trade mark satire decision by the Bundesgerichtshof in Lila Postkarte (Purple Postcard, I ZR 159/02) of 2005 (!) and its clear guidance as to when satire is allowed and when not.

A nod also to the Austrian OGH's Styriagra and Viagra trade mark satire decision (17 Ob 15/09v).

Was either decision cited in this case? Will have to investigate...

Anonymous said...

I don't know how youtube make their money but I guess it is through advertisement. Why then, should youtube be allowed to profit from such parodies? Business is business and freeloading is bad business.

Fine for some residents of Newport to make their own version of the song for their own personal use and such an exception should be created, but if they want to freeload then that is where copyright law does its job.

The lady goo goo song, being a trademark issue, requires different considerations due to the confusion aspect.

I'm all for changes to copyright law but ignoring the basic principle of protecting the creator on the grounds of parody alone seems to be a step too far and will prove difficult to legislate appropriately for.

The exceptions ot patent infringement would be a good starting point for uppdating the copyright act.

Anonymous said...

As an addendum to my previous anonymous post, I have just stumbled across this interesting piece, which corrects some of my youtube thoughts

http://www.thecmuwebsite.com/article/new-copyright-law-wont-jail-bieber/

Anonymous said...

The aim of a parody is to allow the reader/viewer to associate the parody with the parodied work so that they know what is being made fun of, yet they must also be aware that they originate from different sources for the parody to be effective i.e. humorous.

Therefore, a successful parody inevitably means that no confusion can arise, therefore no trademark infringement (based on likelihood of confusion).

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