"Sugar, We're Goin Down": Fall Out Boy sued for copyright-infringing puppets

In mid-March, well-known band Fall Out Boy was sued for copyright infringement in the District Court of Manhattan. The plaintiff is Furry Puppet Studios and the copyright works in question are these two llama/monster costumes:

Royal Tea (left) and Frosty (right)

Fans of the band would recognise these iconic costumed characters as de facto members of Fall Out Boy, making their debut in the band’s music video Young and Menace. It was to realise this video that the band originally commissioned Furry Puppet Studios to create 2 monster-like costumes for them to use.

Post-music video, the popularity of these two characters (Frosty and Royal Tea) has increased dramatically. Fall Out Boy capitalised on this popularity and started to include the two characters in the rest of their music videos, created merchandise featuring them, and even brought them on tour.

Furry Puppet Studios (the plaintiff) alleges that there was only express permission to use the puppet costumes for Young and Menace, and that no permission had been granted to use the puppets elsewhere. As such, the consent given was an implied limited non-exclusive licence.

The plaintiff has raised nine causes of actions against the band and other defendants (including the production company and music label). These include various counts of copyright infringement, vicarious infringement, and liability by inducement. Should those actions under copyright law fail, the plaintiff has also sued for actions under contract law, such as breach of contract and unjust enrichment.

Does Fall Out Boy have any available defences? 

It might be possible to say that the rights in the costumes were exhausted after the first sale to the band, under the first sale doctrine, as codified at 17 U.S.C. § 109. However, as the purpose of the purchase of the costumes was expressed to be only for the Young and Menace music video, reliance on the first sale doctrine might be doubtful. Furthermore, this would only excuse the defendants from the count of infringement relating to the use of the costumes outside the implied licence. For the other counts of copyright infringement, such as the reproduction and the exploitation of the work, one might wonder whether fair use might be invoked successfully.  

As fair use is a statutory defence (section 107 of the Copyright Act) in of itself under US copyright law and is applied on a case-by-case basis, it is possible that the band could rely on it. For this defence the following four factors are considered:

• Purpose and character of the use
• Nature of the copyrighted work
• Amount and substantiality of the work used
• Effect of the use upon the potential market

In very broad terms the 4 factors above do not fall in favour of the band, though the first and fourth factor does have some considerations which this InternKat will discuss.

One act of reproduction includes the album Llamania
produced by Frosty and Royal Tea, with the credits stating:
"All rights reserved, unauthorized duplication is highly encouraged."

The first factor does also look at whether the use was "transformative": the band created merchandise with a further purpose than the original puppets and did not substitute the original use of the work. It is arguable that the band has this factor in their favour but the fact the use is commercial, balances the scale back in the plaintiff's favour.

Regarding the fourth factor, the effect on the existing or future market of the original work is potentially one that is beneficial as sales will not be displaced but in fact demand will increase. However, the band in creating merchandise has even in fact created plush toys of the original work of which the claimants already create as merchandise for their puppets.

This isn’t the first time Fall Out Boy has encountered other legal issues. One single from their album “From Under The Cork Tree”, in fact, features a song titled Our Lawyer Made Us Change the Name of This Song So We Wouldn't Get Sued, which originally carried the title My Name is David Ruffin And These Are The Temptations. 

However, this latest development may be yet another lesson learnt for the band: don’t make a deal involving puppets and not expect to have some strings attached.

Are you as surprised as Spaghetti Kat?

Image Source: genius.com; knowyourmeme.com