It's just the grill... the grill... the grill you want

June 26, 2008 9:08 AM

Claiming "complete rip-off" of their iconic image and sound, Devo are suing McDonald's over the "New Wave Nigel" included with the American Idol Happy Meal. See the video of Nigel in action. "They didn't ask us anything," Gerard Casale told Australian Associated Press. "Plus, we don't like McDonald's, and we don't like American Idol, so we're doubly offended."
posted by porn in the woods (105 comments total)

Nothing like a lawsuit to create attention for your summer tour in the States, Australia, and Japan.
posted by ericb at 9:14 AM on June 26, 2008 [1 favorite]

Huh. McD's probably thought they were all dead. I did.
posted by tadellin at 9:18 AM on June 26, 2008 [3 favorites]

Nothing like a lawsuit to create attention for your summer tour in the States, Australia, and Japan.

Really? Looks like a gross case of copyright infringement to me.
posted by peewinkle at 9:19 AM on June 26, 2008 [4 favorites]

Devo has shilled for Dell, Honda, and freakin' Swiffer mops, and I can't count the number of times I've heard "Whip It" in stupid TV ads for one product or another, presumably with Devo's blessing. I can't really muster any indignation.
posted by blucevalo at 9:23 AM on June 26, 2008 [4 favorites]

I'm lovin' it.
posted by Pecinpah at 9:24 AM on June 26, 2008 [4 favorites]

Good for Devo, fighting the commercialization of something created to question and criticize commercialization. I know when I see Ramones songs or Clash songs being used in commercials that Joey Ramone and Joe Strummer are rolling over in their graves, having fought such uses for years when they were alive.

That McDammitall's used such a recognizable design, instead of being more generic (and avoiding potential problems), or at least checking with the icons they were imitating is an indication of how brazenly arrogant they are. I hope Devo takes 'em to the mat!
posted by birdhaus at 9:25 AM on June 26, 2008

That's a slam dunk for Devo. That sounds like every song they ever made.
posted by Zambrano at 9:27 AM on June 26, 2008 [3 favorites]

When we're talking about a "complete" rip-off, are we talking about more than the hat the toy is wearing? Every other aspect of that toy looks and sounds very generic to me, to the point that I wouldn't have though of Devo at all.
posted by chudmonkey at 9:28 AM on June 26, 2008

Want.

This is much more an homage (to a 25 year old musical trend) than many cases of copyright infringement, but it's copyright infringement, alright. It'd be sad but fascinating to see Devo go to bat and lose this one.
posted by Ambrosia Voyeur at 9:30 AM on June 26, 2008

Devo doesn't really sound like they're trying to fight against commercialization - they just want the money that is due for using their likeness without paying for it.
posted by cellphone at 9:30 AM on June 26, 2008 [5 favorites]

There were Ramones songs in ads when Joey Ramone was alive.
posted by Zambrano at 9:31 AM on June 26, 2008

It does sound like "Theme from Doctor Detroit," one of Devo's lesser tracks.

I've been hooked on Scorsese's Casino lately and the soundtrack's use of "(I Can't Get No) Satisfaction" and "Whip It" while Sam "Ace" Rothstein's empire declines in the 1980s is masterful.
posted by porn in the woods at 9:31 AM on June 26, 2008

I can't really muster any indignation.

If they want to prostitute themselves, that's up to them. But it doesn't make it ok to be raped.
posted by Fuzzy Skinner at 9:32 AM on June 26, 2008 [18 favorites]

Devo has shilled for Dell, Honda, and freakin' Swiffer mops, and I can't count the number of times I've heard "Whip It" in stupid TV ads for one product or another, presumably with Devo's blessing. I can't really muster any indignation.

So if a grocery store sells food to N customers, the N+1st can walk in and just take what he or she wants without paying?
posted by DU at 9:33 AM on June 26, 2008 [1 favorite]

Serious question: is that song clip a recognizable Devo song? You can't copyright a certain style of music.

As for the image, it seems clear to me that they're exploiting an iconic brand for profit. It's no different from appropriating Ronald McDonald.
posted by naju at 9:36 AM on June 26, 2008

Go get 'em, Devo.
posted by Blazecock Pileon at 9:39 AM on June 26, 2008

If they want to prostitute themselves, that's up to them. But it doesn't make it ok to be raped.

So if a grocery store sells food to N customers, the N+1st can walk in and just take what he or she wants without paying?

True enough, and no. You both make very good points.
posted by blucevalo at 9:39 AM on June 26, 2008 [2 favorites]

Devo has shilled for Dell, Honda, and freakin' Swiffer mops, and I can't count the number of times I've heard "Whip It" in stupid TV ads for one product or another, presumably with Devo's blessing. I can't really muster any indignation.

Alice slept with Bob, Craig, and freakin' Dan, and I can't count the number of times I've seen her all over some guy or another, presumably consensually. I can't really muster any indignation.
posted by Pope Guilty at 9:41 AM on June 26, 2008

Nice title.

It sounds a little bit like Weird Al's "Dare To Be Stupid" - which is intended to parody....Devo.
posted by pinky at 9:41 AM on June 26, 2008

Fair use. McDonalds can download anything they want from the internet and use it in any way they want. Devo is defending a dinosaur business model and McDonald's shouldn't have to pay these money grubbing so-called "artists" anything.
posted by three blind mice at 9:44 AM on June 26, 2008 [10 favorites]

Alice slept with Bob, Craig, and freakin' Dan, and I can't count the number of times I've seen her all over some guy or another, presumably consensually. I can't really muster any indignation.

Again, touché. I should have thought before hitting "post." Wouldn't be the first time I posted a dumb comment, probably won't be the last.
posted by blucevalo at 9:47 AM on June 26, 2008

So if a grocery store sells food to N customers, the N+1st can walk in and just take what he or she wants without paying?

I think a point was missed somewhere. Devo can of course sue their balls off in order to appropriately protect their commercial rights. I, for one, just can't muster any indignation against McDonalds or American Idol as being particularly extreme in their misappropriation.

It's not like they hijacked a relatively pristine and pure, un-commercialized image.

Rather, they hijacked a well-worn, revenue-producing, highly commercialized image.

This isn't the "To Kill a Mockingbird List Happy Meal" toy we're talking about.
posted by Cool Papa Bell at 9:48 AM on June 26, 2008

And three blind mice wins the Strawman of the Day Award! Mike, tell him what he's won!

Well, Guilty, he's won three day passes to the Logical Fallacy Conference at the fabulous Mischaracterization Hotel in Dishonesty Beach, Florida! While there, he'll attend seminars in dishonestly describing other people's arguments, the setting up of Straw Men, and the knocking down of same! This trip is all expenses paid and comes with a free guide to logical fallacies, entitled "Straw Man: How to Win Arguments and Persuade Idiots.

Congratulations, three blind mice!
posted by Pope Guilty at 9:50 AM on June 26, 2008 [11 favorites]

I wonder if Weird Al got permission to use that getup in his concerts (he does.)
posted by Ambrosia Voyeur at 9:50 AM on June 26, 2008

"Plus, we don't like McDonald's, and we don't like American Idol, so we're doubly offended."

At least they're honest about it. Otherwise I doubt the lawsuit has much merit.
I say this as a huge Devo fan.
posted by lekvar at 9:51 AM on June 26, 2008

Didn't Devo "borrow" their energy dome design from a surrealist painting?
posted by drezdn at 9:52 AM on June 26, 2008

It's retro hip to hate McDonalds and American Idol: check.

Devo is retro hip: check.
posted by Brocktoon at 9:55 AM on June 26, 2008

It's retro hip to hate McDonalds and American Idol

There's nothing retro about it.
posted by Pope Guilty at 9:57 AM on June 26, 2008

It's no longer hip to hate American Idol. Now it's hip to love American Idol–it's the contrarian, cooler-than-thou thing, like liking Journey.
posted by Mister_A at 10:09 AM on June 26, 2008

Fair use. McDonalds can download anything they want from the internet and use it in any way they want.

It's really important that you know this is, "might makes right" hyperbole aside, totally untrue.
posted by Ambrosia Voyeur at 10:11 AM on June 26, 2008

I wonder if Weird Al got permission to use that getup in his concerts (he does.)

I would think that falls under some kind of fair use umbrella since it's a parody. This, not so much.
posted by padraigin at 10:14 AM on June 26, 2008

weird al got permission.
posted by Henry C. Mabuse at 10:19 AM on June 26, 2008

padraigin, Henry: I know and I'm not surprised, but it's another precedent to look for in the usability of those particular properties. I think McDonalds can argue parody here, but it's shakier ground by far than Dare To Be Stupid in concert.
posted by Ambrosia Voyeur at 10:22 AM on June 26, 2008

Weird Al also goes out of his way to ask the original artists if they're okay with him parodying their songs, even though he knows he doesn't have to, legally. He's class.
posted by Mikey-San at 10:23 AM on June 26, 2008 [7 favorites]

Good luck labeling this parody. A parody has to comment in some way on the subject it's parodying. It's not enough to just mimic. I don't see any kind of commentary going on here, I just see McDonald's trying to cash in on 80's nostalgia.
posted by naju at 10:25 AM on June 26, 2008 [1 favorite]

Great post title, btw!
posted by The Light Fantastic at 10:39 AM on June 26, 2008

I'm surprised no one has yet mentioned that this isn't the first time McDonald's has done this sort of thing.
posted by TedW at 10:49 AM on June 26, 2008

Here's the whole set, I think.

Disco Dave, Country Clay, Rockin' Riley, Lil Hip Hop, Hippie Harmony, New Wave Nigel, Soulful Selma and Punky Pete.
posted by Ambrosia Voyeur at 10:57 AM on June 26, 2008

Where's Black Metal Baldur?
posted by neroli at 11:06 AM on June 26, 2008 [1 favorite]

I took three blind mice's comment as sarcasm. Am I not right?

I dunno... I just automatically assume everything on the internet has a sarcasm tag applied. Usually reads much better that way.
posted by GhostintheMachine at 11:10 AM on June 26, 2008

Yea, I thought the mice was making a joke as well. He/she/it doesn't seem like the corporate toady type.
posted by Mister_A at 11:12 AM on June 26, 2008

Pope Guilty: You are missing the point. Remove instances of "retro" from my comment, and the point still has legs. Let me know if I need to send you a PowerPoint explaining things further.
posted by Brocktoon at 11:17 AM on June 26, 2008

Meh... The price of having your image become iconic seems to be that your image becomes a little, you know, iconic.

Sure, laws and stuff. I just don't feel the outrage. And I don't like McDonald's or American idol either.
posted by terpia at 11:23 AM on June 26, 2008

re: tbm's sarcasm?

Okay I hope so. I guess the "dinosaur business model" kinda hooked me. I'm usually not internet tone deaf, but as someone with a loose view of Fair Use, I consider copyright law a pretty unresolved, tumultuous area, regardless of which way the appropriator/appropriated David/Goliath streets are going. So, sarcasm that presumes the matter is settled doesn't work that well on me, especially with the snarking waters hereabouts muddied with Devo's ...nuanced? commercial integrity, iconic status, and McDonald's history at the apex of targets for parody itself.
posted by Ambrosia Voyeur at 11:25 AM on June 26, 2008

I looked. It is instantly obvious to me that McDonals is devolved. Where exactly is the problem?

I see from Wikipedia that Devo come from Ohio. No wonder they are devo. However, there is a problem. I don't believe they have standing in court. You see:
"We are not people, we are Devo"

I'm sorry, but only people have standing. Case dismissed.

Actually like them. The figure was instantly seen as a Devo. Adding the music serves to heighten the clear sense that this represents Devo. Hope they get a good settlement. And I have a duty to snark on Ohio, I'm from Michigan.
posted by Goofyy at 11:37 AM on June 26, 2008

Freedom fries is what you got.

Freedom from fries is what you want.

In Mickey D's ballroom!
posted by BitterOldPunk at 11:38 AM on June 26, 2008 [5 favorites]

Mark Mothersbaugh is made entirely out of secret sauce.
posted by ...possums at 11:53 AM on June 26, 2008

Ha! You watched American Idol!
posted by doctorschlock at 11:54 AM on June 26, 2008

From what I recall, Weird Al not only got permission to parody (more homage, really) Devo, but even had Mark Mothersbaugh okay the final recording of Dare to Be Stupid before releasing it. He said it was the perfect Devo song. Better than they had done themselves.
posted by team lowkey at 11:55 AM on June 26, 2008 [2 favorites]

I see from Wikipedia that Devo come from Ohio. No wonder they are devo. However, there is a problem. I don't believe they have standing in court. You see:
"We are not people, we are Devo"

Unfortunately my esteemed colleague has completely misunderstood the argument: the correct phrase is "Are we not men? We are DEVO" which, in answering the question, "Are we not men?", with the response "We are DEVO", not only asserts that, yes, indeed, they are men, but thir de-evolution to a state of ape-like stick banging and societal homogeny reinforces this fact.
posted by oneirodynia at 11:56 AM on June 26, 2008 [1 favorite]

*flings poop*
posted by oneirodynia at 11:57 AM on June 26, 2008

Filet-O-Fish he was a Filet-O-Fish
Happier than you and me
Filet-O-Fish he was a Filet-O-Fish
And it determined what he could see
Filet-O-Fish he was a Filet-O-Fish
One chromosome too many
Filet-O-Fish he was a Filet-O-Fish
And it determined what he could see
And he wore a hat
And he had a job
And he brought home the bacon
So that no one knew
Filet-O-Fish he was a Filet-O-Fish
His friends were unaware
Filet-O-Fish he was a Filet-O-Fish
Nobody even cared
posted by Divine_Wino at 12:15 PM on June 26, 2008 [1 favorite]

Next up...Sierra sues McDonalds due to Disco Dave's likeness to Leisure Suit Larry.
posted by samsara at 12:16 PM on June 26, 2008

Man, I still love Devo. Unironically, even.
posted by Eideteker at 12:28 PM on June 26, 2008 [2 favorites]

Wow. I had no idea Gerald (it's Gerald, by the way) had that hat trademarked and copyrighted. Though I suppose I should have known.

McDonald's certainly should have.
posted by koeselitz at 12:30 PM on June 26, 2008 [1 favorite]

Think I got your dial tone
Think I got Billy Baxter's bone
Think I got a bubblesac
Think I got a Big Mac® attack
posted by Sys Rq at 12:34 PM on June 26, 2008 [2 favorites]

Devo shows that you can in fact turn your art degree into dollars.
posted by Fupped Duck at 12:36 PM on June 26, 2008 [2 favorites]

Devo was a seminal band. They wrote great music, used sounds and instruments in new, exciting ways, and had lyrics that were every bit as nuanced and deep as any Clash song. Brian Eno produced their first album, for chrissakes.

Devo has every right to license their material as they see fit, and every right to deny licensing to businesses they don't like.

Plus Mark Motherbaugh is a freaking genius, and will drink any of you all's milkshake without even blinking.
posted by Aquaman at 12:46 PM on June 26, 2008 [3 favorites]

True enough, and no. You both make very good points.

Hey, this isn't the RvB PSA thread!
posted by flaterik at 12:46 PM on June 26, 2008

They should have gone with Greg Grunge; a little skinny guy with torn jeans and a shotgun. No one could have gotten upset about that.
posted by yhbc at 12:51 PM on June 26, 2008 [1 favorite]

It takes a hungry man
to eat a happy meal
you may be hungry now
but you won't be hungry long!

I hope they rip McD's a new one...
posted by schyler523 at 1:00 PM on June 26, 2008 [1 favorite]

waitaminute... these are the guys who sang

Hold the pickles, hold the lettuce
Special orders don't upset us
All we ask is that you let us serve it
Your way

in Too Much Paranoia. I think, maybe, turnabout is fair play.
If it weren't for the fact that McDonalds sucks.
posted by lekvar at 1:01 PM on June 26, 2008

Wait, you people think one guy should be able to stop everyone else on the planet from wearing a ziggurat-shaped hat? You think somebody should be given a monopoly on a hat shape? You really want an intellectual property regime that strong?

Astonishing. I just don't get people who value freedom of expression so little.
posted by sdodd at 1:05 PM on June 26, 2008 [2 favorites]

Rockin' Riley looks like he or she is about to blow chunks. Which is apt I suppose.
posted by stinkycheese at 1:08 PM on June 26, 2008

Wait, you people think one guy should be able to stop everyone else on the planet from wearing a ziggurat-shaped hat?

I must have missed something. Where did anyone support the idea of preventing everyone from dong that? The way I read it, Devo's trying to stop one legal person from doing it. One is a far cry from everyone.

Astonishing. I just don't get people who bother debating without fallacy.
posted by ten pounds of inedita at 1:20 PM on June 26, 2008 [1 favorite]

This is the part where I cleverly quote or riff on Beautiful World, but I looked at the lyrics, and all I could think to do was put "...NOT" everywhere.
posted by Ambrosia Voyeur at 1:24 PM on June 26, 2008

It's a beautiful hat design... FOR YOU.
posted by contraption at 1:35 PM on June 26, 2008 [1 favorite]

Wait, you people think one guy should be able to stop everyone else on the planet from wearing a ziggurat-shaped hat?

In the context of a non-Fair Use usage, a jumpsuit, a presentation of a singer, a presentation of said singer being "New Wave," with the express purpose of creating in the mind of the viewer a connection between two commercial entities where no such relationship exists? Yeah.

Astonishing. I just don't get people who bother debating without looking at the greater context.
posted by Cool Papa Bell at 1:36 PM on June 26, 2008 [1 favorite]

"We were interested in all kinds of stuff. We were all fascinated with film music and commercials. One that we really liked a lot was the Burger King 'Hold the pickle, hold the lettuce' commercial. We thought that was a pretty subversive act -- to turn a classically universal beautiful piece of music into some inane ditty to sell greasy hamburgers." -- Mark Mothersbaugh
posted by blucevalo at 1:36 PM on June 26, 2008 [1 favorite]

I had no idea Gerald (it's Gerald, by the way) had that hat trademarked and copyrighted.

Call me old-fashioned, but I'm going to insist there is absolutely NO WAY he copyrighted a hat. Trademarked, perhaps.
posted by kingbenny at 1:50 PM on June 26, 2008

The people upthread who are making rape analogies deserve mockery. Conflating extreme physical and emotional violation with McDs drawing from the cultural well that Devo pissed in 30 years ago is not helpful.

I like Devo's music, but in my opinion they've had plenty of time to exploit their tiered red hats, and the fact that the image is so widely disseminated makes it part of all of our culture - it's bigger than they are, now. McD is slimy, but i think Devo's broad cultural impact means that no one is going to think 'Devo approves this hamburger' rather than 'Generic new wave archetype as represented by the Devo Hat approves this hamburger'.

I feel the same way about Mickey Mouse. Darned lobbyists and their love of keeping ideas locked up ... in 80 years we'll have the Mothersbaugh Memorial Copyright Extension Act, just you wait.
posted by thedaniel at 1:52 PM on June 26, 2008 [2 favorites]

> I must have missed something. Where did anyone support the idea of preventing everyone from [doing] that?

It's implicit in the definition of copyright. Copyright is a government-granted monopoly.

> ...without looking at the greater context.

The purpose of trademark law is to protect consumers from being deceived as to the origin of a product. Didn't the manufacturer avoid using the band's name? Didn't they avoid the distinctive hat color? You're arguing for a scope for IP law that's bad for society and culture. Just because you like this David and not this Goliath (and I share your preference in that, by the way) doesn't make the implications of your view any less scary.
posted by sdodd at 1:56 PM on June 26, 2008 [1 favorite]

devo missed it - they should go on stage this tour wearing hats that look just like golden arches, and tell mcdonalds that if they can rip off the band's design for hats, turnabout is fair play

the funny part is if they did that and mcdonalds sued them - you'd be all over mickey d's for doing it
posted by pyramid termite at 2:04 PM on June 26, 2008 [1 favorite]

the funny part is if they did that and mcdonalds sued them - you'd be all over mickey d's for doing it

No I wouldn't.
posted by kingbenny at 2:08 PM on June 26, 2008

> Call me old-fashioned, but I'm going to insist there is absolutely NO WAY he copyrighted a hat. Trademarked, perhaps.

Absolutely. Not in the U.S., anyway. Copyright is for "expressive works" -- like books, recordings, and film -- "fixed" in a tangible medium.
posted by sdodd at 2:10 PM on June 26, 2008

I'm constantly amazed how badly people mess up the difference between copyright and trademark. Copyright is granted in original works that have been published (a legal fiction that doesn't really mean publish as in a book). Original works need not be more creative than a step above a phone book, but they must be original. Copyright infringement occurs when you copy that original work, either directly or by incorporating it into a new derivative work (a riff on the original). So, for Devo to claim copyright infringement, it more or less has to prove that some original work was copied by the McDonald's toy. What would that be (as others have asked)? The hat? The music? By the way, you do NOT have to register your copyright in the US to own it - but you can't sue until you do register it.

Trademark is another creature, and has others have mentioned, it is largely about consumer protection - knowing the origin of a good. Trademarks can be gained in common law (people generally recognize your trademark) or by filing with a governmental agency. Here is where the lawsuit would more likely have traction - that the hat is well known to be a symbol of Devo. But are people confused as to origin? That the toy was authorized by Devo?

Sorry, I'm with others that state that to the extent Devo can claim any rights in either copyright or trademark, this toy is likely fair use. Hell, I'd even say the doll is a parody of Devo. What a waste of time. Where are the copyfighters and anti-trademark geeks when you need them.

Now excuse me while I put a pot on my head and dance like a robot while hoping not to get sued.
posted by Muddler at 2:21 PM on June 26, 2008 [2 favorites]

Devo mocked "spuds," you know the people who watch American Idol and eat at McDonalds. Put aside the law for a moment. Of all the 80s bands that American Idol and McDonalds could y'know, um . . . "borrow" from, they chose Devo? Of course they got a lawsuit.

There are two important points not noted yet. First, Devo was incredibly good. For example, Uncontrollable Urge, that pastiche of I'm-outta-control-party-hard-rock-'n-roll-whoooo!-dudism, is better than the music it arose from.

Second, they were avant garde comedians. This is one of my favorite rock 'n roll anecdotes of all time:

O: When you got into fist fights, could Devo hold its own?

JC: Yeah. We did all right. They assumed we were some kind of nerd intellectual wimps, and then we'd get nasty, and it would scare the shit out of them. Then they thought twice about it. That happened once in Akron in the early days at The Cave, I think it was called. No, it was not The Cave. I see the place vividly, and I'm forgetting the name. They were always called The Cave or The Cellar, you know. The Pirate's Asshole. Then, in Cleveland, it was some kind of theater, and we played by lying and saying we were a Foghat cover band, that we could do Foghat and Three Dog Night, and something else. Then we came out in clear plastic masks and firemen's work suits, and proceeded to do our own material. We'd say, "Here's one by Foghat," and then we'd do our own song. It immediately started a riot. We got into it big-time that night. It's unbelievable what happened. Then, at CBGB's in New York, a big altercation with the Dead Boys fans... Half the crowd was into us, and half the crowd was into them. They actually looked at it like a polarized situation. Cultural myopia.

From this Onion interview.
posted by ferdydurke at 2:28 PM on June 26, 2008 [1 favorite]

What would that be (as others have asked)? The hat? The music?

Uhh ... the likeness?

IANAL, but geez, you guys ... take a comm law class sometime...
posted by Cool Papa Bell at 2:30 PM on June 26, 2008

> Uhh ... the likeness?

From the linked article: "Devo bassist Gerald Casale [...] is quoted as saying, '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.'" (Emphasis mine.)

The Right of Publicity is governed by State as opposed to Federal law (or international treaty). If DEVO wanted to try exert their personality rights in a state court, that's fine. But that's not what they said.
posted by sdodd at 2:51 PM on June 26, 2008

This just in: they've pulled New Wave Nigel and they're going with No Wave Nancy, which is just a complete lift of Lydia Lunch.
posted by porn in the woods at 2:51 PM on June 26, 2008 [1 favorite]

It's implicit in the definition of copyright.

Our support of one person's action against one infringer does not imply unconditional support for traditional copyright, and you know it. That I support Devo's action against McDonald's does not mean that I would support future actions against other defendants. You are using bad, fallacious logic. Don't be that guy.
posted by ten pounds of inedita at 3:00 PM on June 26, 2008

Uhh ... the likeness?

IANAL, but geez, you guys ... take a comm law class sometime...

Personality rights have almost zero to do with copyright. Trademark, yes, as has been mentioned. I got the impression he was just tossing out the catchphrases people would respond to, but I can't really think of a way to _copyright a hat_.
posted by kingbenny at 3:02 PM on June 26, 2008

this toy is likely fair use. Hell, I'd even say the doll is a parody of Devo

I deal with fair use at work; this is not fair use. This is commercial use.

...the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes...

I would think those guys would know best. As for the parody claim, McDonald's is neither commenting on nor critiquing the work of Devo, merely profiting from it. They are also not downloading material off the internet for their personal entertainment. Once again, they are trying to profit from the labor of others without permission.
posted by TedW at 3:04 PM on June 26, 2008

ten pounds - Unfortunately, we don't have the privilege of applying the law based on our pop music preferences. If my friend John Doe murdered my enemy Jim Smith, could I say "I support the murder of Jim Smith" without tacitly approving murder as a means to solve grudges? Don't be that hypocrite, don't be that troll, don't be that internet argument guy.
posted by thedaniel at 3:13 PM on June 26, 2008 [1 favorite]

It's important to note that the Energy Dome is not just a hat; it also serves as a literal trademark (i.e. a 2-d logo, on letterhead 'n' shit). It's DEVO's Golden Arches.
posted by Sys Rq at 3:14 PM on June 26, 2008

It's important to note that the Energy Dome is not just a hat; it also serves as a literal trademark (i.e. a 2-d logo, on letterhead 'n' shit). It's DEVO's Golden Arches.

Definitely. Trademark applies, NOT copyright. It just seems like way too many people conflate the two.
posted by kingbenny at 3:17 PM on June 26, 2008

Whenever I think of Mark Mothersbaugh, I think of my kids dancing to the music of Rugrats, Rocket Power and The Wild Thornberries.

Klasky/Czupo, ftw.
posted by liza at 4:09 PM on June 26, 2008

"If ah cain't whup it, ah'll go down!"
McDonalds will pay to know what it really thinks.
"Bob" hath spoken.

...

MARK MOTHERSBAUGH IS A SAINT!
posted by ZachsMind at 5:40 PM on June 26, 2008

DEVO Will Eat Itself
posted by humannaire at 5:43 PM on June 26, 2008 [1 favorite]

The funny thing is, had they ignored the hat and just gone with spiked hair or a mohawk, they'd have probably been in the clear and it would have still looked New Wave. Not that the spuds that watch that crap would be old enough to know what that even is.

Always funny to see a band that was around for five years before the term was even used get lumped in with the British New Wave groups.

What's really funny about the timing of this post tonight is I ordered my very own "Energy Dome"(TM) last week and it arrived today. My soon to be 3 years old son loves the "Whip It" video and especially the hats, so I was going to surprise him an wear it on his birthday. Still bummed out they don't make a kids sized dome. Especially after the whole DEV2.0 thing two years ago.

Personally I hope Devo takes them to the cleaners. Devo is clearly in the right and it's within their own best interests to protect their trademark.
posted by inthe80s at 8:31 PM on June 26, 2008

Copyright is a government-granted monopoly.

You, sir, are an idiot. [keywords: patent, copyright, trademark]

Fair use. McDonalds can download anything they want from the internet and use it in any way they want.

You, sir, are also an idiot. [keywords: criticism, comment, news reporting, teaching, scholarship, or research]
posted by Civil_Disobedient at 9:41 PM on June 26, 2008

Now I'm just waiting for someone to say this violates McDonald's first amendment rights, and the idiocy will be complete.
posted by Civil_Disobedient at 9:42 PM on June 26, 2008

The idiocy will never be complete. Idiocy is infinite. Idiocy is fractal.
posted by painquale at 10:56 PM on June 26, 2008

Now I'm just waiting for someone to say this violates McDonald's first amendment rights, and the idiocy will be complete.

By, for example, citing this case?

Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit.

Looks like McDonalds simply needs to produce a comic featuring New Wave Nigel, then it can manufacture the toys based on the character in their comic.
posted by PeterMcDermott at 11:56 PM on June 26, 2008

I hope McDonald's loses so much money that they fold up. Fuck those clowns.
posted by chuckdarwin at 1:28 AM on June 27, 2008

Copyright is a government-granted monopoly.

You, sir, are an idiot. [keywords: patent, copyright, trademark]

"Lawmart", seriously? That's your source? Provider of "MyCare Plan™ Wills and Trusts"? Powers of attorney included! Only $499!

There's a pretty interesting discussion to be had about what copyright actually is. The U.S. Code refers to it as a "protection" of "exclusive rights". These aren't to be confused with the "natural/inherent rights" that are the subject of the Constitution and Bill of Rights. With that distinction in mind, how do you create an exclusive right and what can you do with it?
posted by breath at 3:51 AM on June 27, 2008

>don't let xtc know there new wave hit song, making plans for nigel, ''new wave nigel //en.wikipedia.org/wiki/XTC
posted by baker dave at 5:27 AM on June 27, 2008

> You, sir, are an idiot.

Hey, Civil_Disobedient, all due respect, buddy, but you might have wanted to search a bit longer because I'm hardly the first person to call copyright a monopoly. It's the established legal view. From a recent supreme court copyright case, Associate Justice Stephen Breyer:

"The Clause assumes an initial grant of monopoly, designed primarily to encourage creation, followed by termination of the monopoly grant in order to promote dissemination of already-created works. It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence."

(To be sure, just because something's a monopoly doesn't automatically mean it's bad. Granting artists an exclusive right limited in duration and scope is a great idea. It's just gotten out of control in the past few decades, exacerbated by the way global telecommunications technology has made many categories of expressive works non-rival. The view expressed up-thread endorsed this runaway IP regime, which is bad.)

I appreciate the link, but as a professional software developer, I have to be way more educated on copyright, patent, and trademark law than I ever wanted to be, trust me. It's a fucking curse. I can't make a move without stepping in the mess IP law has become.
posted by sdodd at 5:46 AM on June 27, 2008

McDonalds deserves to be done over this - given how aggressively they protect their own trademarks and iconography they shodul expect the same treatment.

i hope they are taken to the cleaners! I still listen to Devo all the time and I never eat McDonalds. that shit is not even 'food'.
posted by mary8nne at 8:44 AM on June 27, 2008

(crickets)
posted by Zambrano at 11:09 AM on June 27, 2008

Infringement usually hinges on confusion. The fact that Devo just put out a (terrible) kids' CD through Disney records targeting the same demographic as Happy Meals doesn't help.

Or the fact that my eight-year-old daughter opened up her Happy Meal, said, "Look! A Devo toy!" without prompting and then gave it to my husband all excited about getting a "Devo toy" for him based only on her exposure to a few Devo videos and "Dare to be Stupid" means that they've got a case.

But on the plus side for us, it was the first Happy Meal toy I didn't have the immediate urge to throw out.
posted by Gucky at 11:25 AM on June 27, 2008

The people upthread who are making rape analogies deserve mockery. Conflating extreme physical and emotional violation with McDs drawing from the cultural well that Devo pissed in 30 years ago is not helpful.

Victim-blaming is always reprehensible, no matter what the crime in question.
posted by Pope Guilty at 9:46 AM on June 28, 2008

"Lawmart", seriously? That's your source? Provider of "MyCare Plan™ Wills and Trusts"? Powers of attorney included! Only $499!

Haha... sorry, it was the first link in my search. That'll teach me!

I appreciate the link, but as a professional software developer, I have to be way more educated on copyright, patent, and trademark law than I ever wanted to be, trust me. It's a fucking curse. I can't make a move without stepping in the mess IP law has become.

Usually when I read someone talking about government-granted monopoly I assume they're confusing patents with other forms of IP, since you don't normally hear people referring to intellectual monopolies. My apologies (/fellow software developer).
posted by Civil_Disobedient at 10:19 AM on June 28, 2008

Related: McD's is running an ad that features scratcher type musicians doing a hibbity-hop two-all-beef-patties etc. that sounds a great deal like Sublime's "What I Got" and I've been wondering if they paid for that or not.
posted by stevil at 1:43 PM on June 28, 2008

On Devo and merchandising—I just got an email from someone who isn't a mefite but wanted to point this out:

Singing Devo toothbrush.
posted by cortex at 6:08 PM on June 28, 2008