Tonight I'm (Not) Going to Lego Tonight

August 11, 2009 9:55 AM

Lego Says No to Spinal Tap.(NYT link). Lego has told Spinal Tap they cannot show a fan-created Lego film in their upcoming Unwigged and Unplugged DVD.
posted by Man-Thing (52 comments total)

What's wrong with being lego-sexy?
posted by mr_crash_davis mark II: Jazz Odyssey at 10:07 AM on August 11 [2 favorites]

Now hang on a second.

Does Lego claim copyright over anything constructed with Legos?
posted by effugas at 10:09 AM on August 11 [9 favorites]

I understand their position. Those Legos are in danger of being trod upon.
posted by ColdChef at 10:12 AM on August 11 [3 favorites]

Looks like they claimed copyright on those distinctive Lego figures, not mere Lego bricks.
posted by Maxson at 10:12 AM on August 11

Great fan-made video.

Horrible squelching company.

And yeah, I second effugas' question.
posted by hippybear at 10:12 AM on August 11

Too bad it wasn't "Sex Farm" or "Big Bottom."
posted by jbickers at 10:13 AM on August 11

Kia Kamran, an intellectual property lawyer representing Spinal Tap, said the band could have prevailed had Lego sued alleging copyright infringement, because Mr. Hickey’s video does not show the brand’s logo and is satirical. But the band did not deem the fight worth the expense, he said.

That sounds about right. Boo, Lego. Boo.
posted by DU at 10:14 AM on August 11

Zombie Lincoln also wants to file copyright claaaaaaaiiiiiimmmms.
posted by logicpunk at 10:16 AM on August 11

As long as there's, you know, legos and stop-motion animation, I can do without the rock and roll.
posted by filthy light thief at 10:17 AM on August 11 [1 favorite]

Yeah, this seems like a pretty shoddy move on Lego's part. Have there been other cases like this?

Saying that the video is infringement because of the recognizable Lego figurines seems like a red herring. I'd venture a guess that the basic eight-peg Lego shape is more universally identifiable than the figures are.
posted by roll truck roll at 10:19 AM on August 11

I'd probably be more upset about this if I wasn't so heavily sedated.
posted by mattdidthat at 10:21 AM on August 11 [2 favorites]

man, I just don't understand copyright law. So is this true of all toys? Could I not use an old Gobot or Transformer toy in a commercial video or film project without the manufacturer's permission? What about things that aren't toys? If I want to use a pipe fitting in my set whose design is copyrighted or trademarked, do I have to get permission?
posted by shmegegge at 10:22 AM on August 11

Ah, would a Chinese knock off manufacturer please step to the fore, and teach Lego the same lesson that M&Ms learned twenty someodd years ago with the movie E.T.?

Stupid, stupid, lawyers.
posted by Xoebe at 10:22 AM on August 11

also, are these actual Lego Spinal Tap figures? or are they figures of some other characters?
posted by shmegegge at 10:23 AM on August 11

I AM OUTRAGED. That was terribly dull for a Lego video.
posted by eyeballkid at 10:26 AM on August 11 [2 favorites]

would a Chinese knock off manufacturer please step to the fore

There's already at least one cheap Lego knockoff and it's pretty terrible. For one thing, it's just the blocks. No Technic stuff. For another, the plastic is very inferior. It feels awful, it doesn't connect well, etc. And the colors are highly variable.
posted by DU at 10:40 AM on August 11

This is a little misleading. Copyright law has little to do with this:

“YouTube is a less commercial use,” Ms. Stern said. “But when you get into a more commercial use, that’s when we have to look into the fact that we are a trademarked brand, and we really have to control the use of our brand, and our brand values.”

Artists in general, absolutely hate when they're misrepresented. Look at this coming from Parker and Stone:

We have a very specific beef with Michael Moore...I did an interview, and he didn't mischaracterize me for anything I said in Bowling for Columbine. But what he did do was put this cartoon [titled A Brief History of the United States of America, written by Moore, animated and directed by Harold Moss] right after me that made it look like we did that cartoon

and from Matt Groening:

Matt Groening, creator of The Simpsons, reacted negatively when he heard about this episode, feeling that it was just an advertisement for The Critic, and that people would incorrectly associate the show with him. When he was unsuccessful in getting the program pulled, he had his name removed from the credits and went public with his concerns, openly criticizing James L. Brooks and saying the episode "violates the Simpsons' universe."

This seemed more like a professional courtesy. It is not like the bit is particularly funny, it seemed more like an excuse for a New York Times writer to interview Spinal Tap than it did a story about about copyright.
posted by geoff. at 10:43 AM on August 11 [3 favorites]

And then Fender claimed a copyright on all scenes involving Fender guitars...
posted by Pope Guilty at 10:55 AM on August 11

Ah, would a Chinese knock off manufacturer please step to the fore, and teach Lego the same lesson that M&Ms learned twenty someodd years ago with the movie E.T.?

Would you like those toys leaded, unleaded or premium?
posted by Blazecock Pileon at 11:02 AM on August 11 [1 favorite]

Artists in general, absolutely hate when they're misrepresented.... This seemed more like a professional courtesy.

Professional courtesy is nice, but what if two professionals disagree on what is courteous? (And are Lego figures art? That's a question for another time.) That's why copyright infringement comes into play here- America doesn't have a means of enforcing Lego's idea of courtesy, so Lego just pulled out the copyright stick.

In this case, it's hard to claim that professional courtesy requires everyone to use Lego figures in a way that matches Lego's "brand values". Ms. Stern says the video "had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12"... should all Lego-figure-including videos bow to these brand values?

The obvious counter to any copyright claims here is a fair use defense, but Spinal Tap evidently decided that spending a bunch of money on whether messing around with Lego figures is a parody wasn't worth it. Lego has magnanimously decided that Youtube videos aren't worth going after, but if they really wanted to, they could shut all those videos down. Sure, fair use, but who has the money for that?

This is what happens when copyright law basically boils down to "the owner has absolute control unless someone is willing to spend enough money to prove otherwise".
posted by Maxson at 11:08 AM on August 11

"You put a greased naked lego woman on all fours, with a lego dog collar around her neck and a leash and a minifig's arm extended out up to here holding on to the leash and pushing a tiny, two-fingered black glove in her face to sniff it. You don't find that offensive, you don't find that sexist?"
posted by PlusDistance at 11:15 AM on August 11

*switches to Mega Bloks*
posted by Sys Rq at 11:25 AM on August 11

I kept waiting for the drummer to die.
posted by Flunkie at 11:26 AM on August 11 [3 favorites]

Bummer. I saw the show in NY and the audience LOVED the Lego video.
posted by CunningLinguist at 11:26 AM on August 11

The article seems to be confusing trademark and copyright. In any case, filming something is not copyright infringement unless it is making a pretty literal copy of it, and is most certainly not trademark infringement as long is it does not mislead someone into believing it was endorsed or otherwise affiliated with the brand.

Not only did Spinal Tap not want to fight the battle, they didn't even want to risk having the battle. In many ways, this is a flaw of DVD; you make a lot of them, get them out there, then you get the battle. No trial balloons.

I'd boycott Lego (TM), but I don't buy it anyway....
posted by Bovine Love at 11:27 AM on August 11

I'm sure I'd be more upset if I weren't so heavily medicated.
posted by Smedleyman at 11:52 AM on August 11

I actually think Lego has a legit case here. If you're a toy manufacturer, you wouldn't want a prime-time show using stop-motion animation (or a saturday morning cartoon) of your toys being made without your permission. Imagine I wanted to create a new sitcom, but starring only lego characters. Awesome? Possibly. But I can definitely see how Lego would prevent this. Same with trying to write a video game using the lego characters' likeness (which is already a highly profitable licensing deal for Legos). I don't really see much difference between this and what Spinal Tap is doing.

I'm not advocating for Lego to be able to prevent/regulate shows displaying lego toys, but I agree that using them as actors (or whatever you call them in stop-motion animation) is some sort of violation.
posted by ShadowCrash at 11:57 AM on August 11

Ah, would a Chinese knock off manufacturer please step to the fore, and teach Lego the same lesson that M&Ms learned twenty someodd years ago with the movie E.T.?

Yes, because clearly, there's a chance here to usurp Lego's domination of their market by the appearance of a rival brand in a video clip.
posted by XQUZYPHYR at 11:57 AM on August 11

Ah, ShadowCrash, what Lego want's has nothing to do with it. You can't make something and sell it and expect to retain full control of its every used (despite what software makers might insist). If you don't like some of the uses, then don't sell it.
posted by Bovine Love at 12:10 PM on August 11

Dear Lego -- you are dead to me.
posted by spilon at 12:17 PM on August 11

Have no toy manufacturers ever seen Robot Chicken...
posted by 445supermag at 12:17 PM on August 11 [1 favorite]

This is what happens when copyright law basically boils down to "the owner has absolute control unless someone is willing to spend enough money to prove otherwise".

I agree, but I don't think there was an indication that Lego had any intention of filing for copyright infringement. There's a huge gap between asking permission as a courtesy of doing business and going to court. I remember how devastated Weird Al was when one of his songs (Gangsta's Paradise?) did not get properly cleared:

Coolio claimed that he did not give permission for the parody, which led to disagreements between the two. Yankovic claimed that he had been told Coolio had given the go-ahead through his record label, and apologized. Because of this incident, Yankovic now only does parodies by artists that he has spoken with directly, rather than through intermediaries.

I'm the first to argue that copyright law has run amok, but mainstream satire is not one of those places. There's actually a long history of mainstream commercial artists soliciting and adhering to requests for use that goes beyond just not wanting to get sued.
posted by geoff. at 12:18 PM on August 11

“YouTube is a less commercial use,” Ms. Stern said. “But when you get into a more commercial use, that’s when we have to look into the fact that we are a trademarked brand, and we really have to control the use of our brand, and our brand values.”

Yes, but Seinfeld used names of real companies on his show, and it was without permission and not for product placement. The writers said they would just find a name they thought was funny, like Snapple, and make it a running joke. Lego does not have the rights to prevent anyone from using their brand or toys in a setting like this, but as it was noted, the people behind Spinal Tap just didn't want to fight it.
posted by krinklyfig at 12:27 PM on August 11

ShadowCrash: "If you're a toy manufacturer, you wouldn't want a prime-time show using stop-motion animation (or a saturday morning cartoon) of your toys being made without your permission. Imagine I wanted to create a new sitcom, but starring only lego characters. Awesome? Possibly. But I can definitely see how Lego would prevent this."

why? I mean, as I said, I fundamentally don't understand copyright/trademark law like this. But in the video Lego just said that they didn't want to be associated with the subject matter of the song, but is that a legally actionable position? what is the logic you're seeing behind this decision? I don't see it, but again that's because I don't get the law behind it.
posted by shmegegge at 12:27 PM on August 11

The question is how much more dark bluish gray could this be?

(And the answer is none. None more dark bluish gray.)
posted by rokusan at 12:28 PM on August 11

445supermag: "Have no toy manufacturers ever seen Robot Chicken..."

caveat (again): I'm no expert.

that said, with Robot Chicken and Twisted Toy Fair Theater (done by the same guy), I recall reading that part of the deal was that, where he could, he used toys from extinct companies, like MEGO. where he couldn't do that, he made models and puppets of his own. but I don't get all the intricacies of the show. Maybe they're depending on Fair Use when they, for instance, do a parody of Final Fantasy VII complete with the original characters' names intact. If I'm wrong about anything, I hope someone corrects me.
posted by shmegegge at 12:30 PM on August 11

I'd venture a guess that the basic eight-peg Lego shape is more universally identifiable than the figures are.

But hard to defend: Lego's last patent on the classic brick (and its spacing) expired in 1988, which is why there have been so many "Lego-compatible" products since.
posted by rokusan at 12:30 PM on August 11

I would totally buy Lego^TM Spinal Tap^TM for the Wii^TM.
posted by malocchio at 12:35 PM on August 11

geoff.: I agree, but I don't think there was an indication that Lego had any intention of filing for copyright infringement. There's a huge gap between asking permission as a courtesy of doing business and going to court.

That's true- the article does ask Spinal Tap's lawyer about what they would have done if Lego had sued, and never says Lego actually planned on suing. The article is written to portray Lego as the bad guys ("Lego Kafka"?? It's a quote begging to be used, but still), so the assumption is encouraged, but it's quite possible the actual story is more amicable.

shmegegge: If Lego was suing, they could argue on the copyright side that using their Lego figures without permission would be similar to using any copyrighted character without permission. They could argue on the trademark side that the appearance of their Lego figure is a trademark, and that using the figures to act out a Spinal Tap performance could make people assume Lego sponsored or was otherwise involved with Spinal Tap. These arguments are fairly terrible, but that's where the money comes in- after discovery gets dragged out, the side with less money will cry uncle.
posted by Maxson at 12:49 PM on August 11

The Times article is (as usual) such utter crap that it's impossible to determine what intellectual property rights Lego was actually asserting (Trademark? Copyright? Trade dress? Other?) Having said that, if the figures were copyrighted this wouldn't be a very good fair use case. The figures are central to the expression and are copied in their entirety, the use is largely non-transformative, the use is commercial, and the use is (arguably) competitive with an existing commercial use by the copyright holder, though it doesn't have any obvious effect on the market. The satire argument fails because, in order for a parody to qualify for fair use protection, it most be a parody of the protected work. Tap is many wonderful things, but it is not a parody of Lego.

Again, I have no idea if Lego claims copyright protection over minifigs or not, so all of this might well be irrelevant. Also IAAL, IANYL; this is not legal advice.
posted by The Bellman at 1:15 PM on August 11

Lego toys were fun when I was six. Now I see them for what they are, overpriced chunks of plastic. Boo on Lego for this one. I guess I can see why they wouldn't want their overpriced toys to be marketed in this way, maybe if they made a Lego Spinal Tap Rock Band/Guitar Hero game first this would be OK with Lego.
posted by IvoShandor at 1:39 PM on August 11

maybe if they made a Lego Spinal Tap Rock Band/Guitar Hero game first this would be OK with Lego.

It wouldn't surprise me if this was a consideration on the manufacturer's part --- there is a Lego Rock Band game coming out this fall.
posted by kowalski at 2:54 PM on August 11

I guess this means we won't be seeing any Spinal Tap in Lego Rock Band, which is kind of funny given that the trailer for the game depicts an amp being turned up to 11.
posted by shammack at 3:03 PM on August 11

Hmm - wonder if the statute of limitations has run out for going after these guys:

Fell In Love With A Girl - The White Stripes
posted by mctsonic at 3:17 PM on August 11

Ha! There's a story behind that White Stripes video:

Also revealed in The Work of Director Michel Gondry interview, The White Stripes contacted Lego Group in hopes of having a small Lego set packaged with each single of the record, with which one could build a Lego version of Jack and Meg White. Lego Group refused, saying: "We don't market our product to people over the age of twelve." Once the video became a hit, however, Lego contacted The White Stripes again and asked if they could reconstruct the deal to have Lego packaged with the single. This time, however, Jack White refused, out of anger.
posted by geoff. at 3:51 PM on August 11 [3 favorites]

Hmm - wonder if the statute of limitations has run out for going after these guys: Fell ll In Love With A Girl - The White Stripes

Legos are a tool for expression like paint or clay. The individual elements have limited inherent artistic expression except for the minifigs which seems to be the center of Lego's whine and which aren't used in the White Stripes' video.

The figures are central to the expression and are copied in their entirety, the use is largely non-transformative

The figures have more of Lego's expression than a 2x4 brick, but to me they seem like an artist's manikin. You wouldn't expect the manikin creator to have some claim over a drawing, but you'd also expect the drawing to add clothes, a face or at least an interesting pose.

That mustache is painted on the bass player, isn't it?

How did PodBrix get away with not only making celebrity minifigs that look just like Lego's and not get a C&D letter? I think they mold their own rather than paint Lego figs.

Another example of IP vs. First Sale Doctrine insanity.
posted by morganw at 3:51 PM on August 11 [1 favorite]

Does Lego claim copyright over anything constructed with Legos?

So it would seem.

So who's gonna man up and take such to court?

(Who? Me? I'm not creative enuf to make anything with legos)
posted by rough ashlar at 6:25 PM on August 11

I remember when there were no Lego people figures. You'd go to the toy store and the lego kits would all be flat trays a couple of inches thick and varying areas, up to 1.5 by 2 feet for the one you really wanted to get Christmas morning. You'd flip open the top and cellophane would cover two dozen trays of blocks brilliantly sorted by color or form, and not one of them would be recognizable object like a wheel or crane boom. When you opened it there might be a small pamphlet with some drawn suggestions for things to build.

Legos were better then.
posted by localroger at 6:45 PM on August 11

What, we can't use it in the video? Do you know just how much time I spent making this Lego zucchini covered tin-foil?
posted by zippy at 11:30 PM on August 11 [2 favorites]

I remember when there were no Lego people figures. ...

Legos were better then.

In any given Lego thread on the internet, someone always posts something like this.

You can still buy basic brick buckets, without minifigures or wheels if you wish.

The expiration of the Lego patent in 1988 is precisely why the Lego company is so conservative about their copyrights, whether defensible or not. Mega Bloks and other "clone" brands have stolen a decent chunk Lego's market with people who aren't discriminating about which brand of "legos" they're buying.

Lego is very hesitant to risk any possibility of brand dilution or issue that might be construed as controversial, even to the point of opposing something harmless. They care very much about their brand reputation.
posted by Fleebnork at 6:33 AM on August 12

Spinal Tap and fan obviously do not have as much money as Lucasfilm.
posted by asfuller at 10:57 AM on August 12

see COGO and one of the best inspired-by-LEGO themes ... Communist Military
posted by doogyrev at 12:06 AM on August 15