Devo sues McDonalds

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156 Responses to “Devo sues McDonalds”

  1. kashmir kong says:

    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.

  2. eti says:

    Back in the 1970s there was an article in Esquire magazine about a fake world’s fair. The fair’s mascot wore a hat similar to the DEVO flowerpot hat. Anyone else remember this? I don’t know if Jerry Casale or any of the DEVO boys had a hand in that article, but I’m inclined to think they saw it and it stuck with them, perhaps subconsciously.

    Just goes to show, everything is inspired by something.

    Either way, I hope they get a lot of money from McDonald’s.

  3. StiabhD says:

    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?

  4. noen says:

    Zuzu
    What’s complicated for me is why I don’t need permission but McDonalds does.

    Because you’re not making money from wearing a Halloween costume. See? Simple.

    Why should they be able to exert control over what others do with their own tangible property?

    Because it isn’t their property. Oh I know, in your special world IP isn’t anyone’s property. This goes back to my first point that no one wants to live in that house because it sucks. Copyright and IP laws need to be cleaned up but they are still valid tools for constructing a society that works for most people. Economic theory should serve our needs not the other way around which is what libertarianism, including the Austrian school, does. It’s an axiomatic machine that would crush individuals, forcing them to conform to it’s inhuman laws.

    You’re talking about Alan Greenspan?
    Sorry, I was unclear. I was talking about von Mises who was very closely identified with Rand. You label Greenspan a Monetarist. Meh… all I know is that he himself identified as Libertarian and an admirer of Rand. That and his record of dismal failure is all I need to know.

    Perhaps I am over generalizing but I have to. I don’t have a lifetime to spend on every topic and these in particular can be an endless morass. So I cut the Gordian knot by looking at larger ideas and concepts. I read Ayn Rand’s book on epistemology 20 years ago. Saw through her sophomoric drivel and dismissed her and her minions (the libertarians and other narcissist hangers on) ever since.

    From the anti-copyright / movement against “intellectual property” line of thinking, government writs such as copyright, patents, and trademarks are exclusionary privileges exercised through force, and do not constitute voluntary exchange. (Thus more akin to extortion.)

    All law is enforced by the power of the state and the state, ideally, is us. And yes, participation is totally voluntary. I have a landscape of mine mounted and framed, you want it? You have to agree to my terms. My terms are that I retain the right to profit from copies made from the original. You can ever resell it for whatever price you can get. You don’t like that? Too bad, disobey and I, through my representatives the police, will throw your thieving ass in jail. You want a system with no copyrights and no IP? Fine, go ahead and build it. Oh you did? And no one came (how’s Vermont these days)? Gee I wonder why.

  5. Noddy93 says:

    ah… the tom waits school of making millions

    remember folks
    TOIL IS STUPID

  6. Xopher says:

    Because use of the image implies endorsement. In this case it’s false and defamatory to imply that Devo endorses McDonald’s.

    It also points out the fact that big corporations aren’t “pro-trademark” and “pro-copyright”— they’re just in favor of the idea that corporations own all things.

    If Devo loses this suit, it will be awfully tempting to start marketing Ronald McDonald bareback porn. OK, no one would buy that, but something. Dress someone up to look exactly like Ronald McDonald, imitate the voice they use for him, and talk to kids about how evil fast food is, and how they should all eat vegetarian and tell their parents to do so too.

  7. jeannieh says:

    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.

  8. Shawn Wolfe says:

    McDonalds toys are garbage.

    I know people collect them, but all I see is garbage.

  9. Daemon says:

    Devo really should get satisfaction for this.

    http://www.youtube.com/watch?v=4Ny7CkvfjI4

  10. Bexta says:

    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

  11. Shawn Wolfe says:

    “Well it’s a god-given fact. Ya gotta buy ‘em by the sack, gotta buy ‘em by the sack…” —Shrivel Up

  12. zuzu says:

    You want a system with no copyrights and no IP? Fine, go ahead and build it. Oh you did? And no one came (how’s Vermont these days)? Gee I wonder why.

    The Pirate Bay is actually quite popular, FYI. Hooray for data havens.

    Economic theory should serve our needs not the other way around which is what libertarianism, including the Austrian school, does. It’s an axiomatic machine that would crush individuals, forcing them to conform to it’s inhuman laws.

    Yeah, it’d be awesome to wish away the inconvenience of the force of gravity or laws of thermodynamics so I could vacation on Mars whenever I like too.

  13. noen says:

    Zuzu
    The Pirate Bay is actually quite popular

    Touché. However, that model works fine for leeches. I still don’t see how it benefits the host. Here the host being the creator of the goods being consumed. Boingboing does not advocate this model as far as I know. I understand the creative commons model. Cory writes a book. He makes derivative content available for free but if you want the real thing, the book, you gotta pay.

    This seems to work out fine for now but he relies on this secondary content being less than satisfactory. What happens when that is no longer true? Do you see a PDF link for all his books here? I don’t. Do you think a link to torrents of his books would be tolerated? They exist, I checked. What about a torrent of an AudioBook version of his books?

    If all digital media must be free where do I make my living? In short, in the “all digital media wants to be free” model. How is monetary value calculated and then subsequently rewarded? Reputation? You can have a great rep and live under the freeway in a cardboard box.

    it’d be awesome to wish away the inconvenience of the force of gravity

    Re: Facts vs values “Ayn Rand claimed to have solved the ‘is-ought problem’ posed by David Hume, writing, “The fact that a living entity is, determines what it ought to do. So much for the relation between ‘is’ and ‘ought’.”

    And so much for Ayn Rand and her arrogant philosophy. I’m reasonably confident that nobody ever has or ever will derive an ought from an is. More precisely, my claim is that substantive ought-statements can’t be validly derived from any set of is-statements that do not themselves presuppose substantive ought-statements.

    the point remains that economics is properly a descriptive rather than prescriptive framework.

    This is simply false. The case has not been made. What has been attempted so far is to assume that everyone pursues their rational self interest only, is objectively false.

  14. LB says:

    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.

  15. Phikus says:

    Give ‘em some slack. Obviously, Devo must perform their duty now for the future

  16. artfreakydude says:

    I’m rooting for devo!

  17. noen says:

    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.

  18. zuzu says:

    Copyright is a choice.

    Actually, it’s not. It’s automatic, ever since 1978.

    My *union* and I copyright my plays.

    Are you also zappin’ rats and roaches, and making sure kids don’t drink piss from the fucking water fountain?

    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.

    Do I need permission from Devo to wear an “energy dome” on Halloween?

    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.

    You’re talking about Alan Greenspan? Because he has very little to do with the Austrian School of economic theory. Even the ties between Greenspan and Rand are weak, IIRC; he was in her cult for awhile but eventually fell out of it. My point is beware of making sweeping generalizations, oversimplifications, and prejudices about all “libertarians”.

    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.

    Actually, I wouldn’t interpret Marja’s comment as apologist for copyright infringement; certainly less so than Stewart Brand’s “information wants to be free” has been popularly interpreted. From the anti-copyright / movement against “intellectual property” line of thinking, government writs such as copyright, patents, and trademarks are exclusionary privileges exercised through force, and do not constitute voluntary exchange. (Thus more akin to extortion.) Furthermore, since ideas, information, and techniques are non-rival, they do not have the “natural” exclusion that material goods do — the latter of which is the historic basis for common property law, and hence why “theft” is defined as denial of use, not “use by others”. However, those writs do creep into your home or office and impose limits what you can do with your own tools, your own printing press, your own computer, etc. (Again, because they enforce exclusion on others.)

    It may be cliché, but I highly recommend reading Thomas Jefferson’s letter to Isaac McPherson:

    It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

  19. cherry shiva says:

    i’m going straight to mcd’s to get one of those dolls. collectable !

  20. Antinous says:

    Yeah, it’d be awesome to wish away the inconvenience of the force of gravity or laws of thermodynamics so I could vacation on Mars whenever I like too.

    Yeah, Zuzu, economics is a science. Only it’s a little closer to the science of voodoo than to the science of physics.

  21. nikos says:

    alternate link to swamped AFSME vid zuzu pointed to
    http://www.youtube.com/watch?v=HcorUU_HI8Q

    I don’t take her meaning too well but this is a funny clip.

  22. noen says:

    “Do you see a PDF link for all his books here?”

    Oops, ok, got that wrong. I am still very nervous about just giving everything away on the hope someone likes it enough to pay me. If my only product is digital where do I earn a living?

  23. Jed Alexander says:

    “McDonalds toys are garbage.”

    “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.”

    Ok, they’re not really good toys, per se. I mean if you’re kid hates it, I don’t blame them. In fact out of the 5, only two of mine actually play music–the others don’t work at all, and the the music they do make is generic, tinny and grating. They’re cheap and arguably trashy. I don’t collect happy meal toys or really any toys besides the ones designed by Jim Woodring. But I like these designs. They may not be well-designed toys, as far as a thing that a kid might like to play with, but they’re nicely designed objects. They have a an pleasant simplicity of design that goes above and beyond the typical happy meal toy. Every once in a while something like this will happen–by accident or hapinstance, something in the mainstream of disposable culture ends up interesting despite itself. I don’t think they’re mind-blowing or anything, I just happen to like them.

    I also like Devo, and they may or may not have an argument against McDonald’s for copyright infringement. I don’t know the law. However, I find it very hard to believe that McDonald’s is cashing in on Devo or the hip cache of the Devo hat. The kids who get these most likely couldn’t care less about Devo. It seems like a fun thing the designer slipped in there as a kind of tribute–Devo as an icon of the eighties. I don’t think that anyone is going to get confused and think that Devo endorsed this. The people that know and like Devo are the ones who are going to recognize the hat, and those that don’t are probably indifferent.

    I mean, the law aside, isn’t the main ethical issue in contention that someone is benefitting financially by exploiting an idea that doesn’t belong to them? I don’t see McDonald’s doing that here.

    I think this falls somewhere in the gray area of fair use. Maybe Nigel himself is very Devo-like, but the toys as a collection of toys aren’t principally about Devo. they’re not even about American Idol really.

    I would like to think that I can use a Devo hat in a piece of art that I make without getting Devo’s permission, just as I feel I should be able to use Mickey Mouse Ears in something I make, as long as it’s not ABOUT Mickey Mouse. Whether either action is covered by the law, I have no idea, but it seems just to me.

    What I think Devo should do, and this would be very much in the spirit of Devo–is to make a piece of art using McDonald’s iconography as a part of that art. Why not celebrate, reiterate and defend the idea of fair use instead of giving further precedent to restrict it?

  24. mekrod says:

    Sorry to reply to comments. I didn’t realize that was against BB policy. I won’t do it again.

  25. Shawn Wolfe says:

    You’re wrong. They are not “nicely designed objects”. They are garbage. They may even be racist. I’m having my attorneys look into it.

  26. Antinous says:

    Clearly a slow news day.

  27. SarahFenix says:

    Kudos to those who’ve actually studied copyright and mentioned here that you cannot copyright a HAT.

    Besides this case getting dismissed SJ faster than your Mc-Order is ready, I’d suggest they better watch out for evil Mc-Lawyers to ‘Whip it’ in retaliation for a frivolous lawsuit including proof of harassment with that lovely McD/American Idol quote quickly spreading all over the Internet…

  28. Takuan says:

    is it possible you were in violation of the posted Moderation Policy?

  29. ricket says:

    IANAL, but does it change anyone’s mind that DEVO runs their own store selling energy domes and energy-dome-related knick knacks?

  30. Anonymous says:

    The bizarre idea persisting in this thread that Mickey D’s can make an OBVIOUS Devo ripoff toy and not at least shoot them a liscensing fee is absurd and counter to the legitimate and well-founded intent of copyright– i.e. that creators be compensated for exploitative use of their creations, or have the ability to exert some control over them. If Mickey D’s had used a Devo SONG for marketing purposes without liscensing through the proper publishing channels, nobody in their right mind would defend them or think it legal (in fact it would never even get that far). To my mind, the fact that they used a universally recognizable Devo stand-in for the same marketing purpose is fundamentally equivalent: Devo should have a say, and if they’re okay with it, they should get a cut. If they’re not, McD’s should not be able to use their likeness. End of story.
    If Mothersbaugh wants to sell them something he came up with, it his business. If he doesn’t, likewise. Doing a swiffer commercial or not is completely inconsequential.
    Besides, swiffers RULE. seriously.
    Also, f**k McDonald’s with the intensity of a thousand exploding suns.
    Also, Zuzu, of course you can wear an energy dome for halloween. You just can’t sell a mass-produced toy that’s wearing an energy dome without negotiating an agreement with the dudes who came up with it. Not that complicated.

  31. Torley says:

    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.

  32. zuzu says:

    Also, Zuzu, of course you can wear an energy dome for halloween. You just can’t sell a mass-produced toy that’s wearing an energy dome without negotiating an agreement with the dudes who came up with it. Not that complicated.

    What’s complicated for me is why I don’t need permission but McDonalds does.

    i.e. that creators be compensated for exploitative use of their creations, or have the ability to exert some control over them.

    Why should they be able to exert control over what others do with their own tangible property? Presumably Devo found a way to make the song/video, and that was the appropriate time for compensation. This could be done with an assurance contract (aka threshold pledge), or a prediction market (aka contingency market), or creating a joint stock company, as just a few examples. This is a critical aspect (and challenge) of conceptually adjusting from an industrial economy to a knowledge economy; that the value is no longer in selling copies of things, but in creating new things which never before existed. (Remember Kevin Kelly’s Better Than Free?)

  33. Takuan says:

    hokay then, suppose I write my poetry on ze hat? What zen, hein?

  34. Setharian says:

    They were just sharing copies of the hats. ;)

  35. mneptok says:

    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

  36. zuzu says:

    the red hat is exactly the red hat that I designed, and it’s copyrighted and trademarked.

    “He who fights with monsters should look to it that he himself does not become a monster.” — Friedrich Nietzsche, Beyond Good and Evil

  37. zuzu says:

    Yeah, Zuzu, economics is a science. Only it’s a little closer to the science of voodoo than to the science of physics.

    Although economics is a subset of social science, it has most in common with communication theory and systems theory than other disciplines.

    However, the point remains that economics is properly a descriptive rather than prescriptive framework. c.f. the is-ought problem.

  38. bobkat says:

    “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?

  39. jacobian says:

    @109

    The difference is that the people in Devo are people. McDonalds is not a person (except legally) it’s a huge mega-corp. We don’t need to defend the rights of corporations to exploit us through the expropriation of culture.

  40. BlackAndy says:

    @#85 (mekrod):

    “Wow what a cartload of horse poop. So they are gonna sue over a trademarked flowerpot? 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??? That’s the hack calling the kettle black. This is just dumb.”

    http://en.wikipedia.org/wiki/Fountain_%28Duchamp%29

    You may not agree with its significance, but for nearly a hundred years people have been considering it art.

    “But I guess if your claim to fame is a freakin upside down flowerpot then the lameness just bubbles over sooner or later. Similar to the well-timed copyright lawsuits against Google after the purchased Youtube. Wait until they have money then sue… got it. FROWNY FACE”

    You pretty much answered your own question there about why they sued. Well, that and the fact that the costume company a) doesn’t spend millions to advertise — primarily to children — a product that has dubious qualifications as “food” and b) the resulting demand for said “food” very directly leads to dire ecological consequenses that will before long begin to affect us all, and particularly those who live with the least.

    These aren’t problems exclusive to any one fast food company, nor are they exclusive to that industry (see the soda industry for plenty of other examples). But I have the same problems with any company that behaves in this manner as I would with say a manufacturing company that allows toxic chemicals to seep into an area’s groundwater and then ties efforts to make them pay to clean it up it in court for years, or a pharmaceutical company that markets a largely ineffective drug and conceals evidence of dangerous side effects. That is, this is corporate wrongdoing at its worst and they deserve what they get, if only because its so much less than what they could have got. (Ask MobilExxon about that.)

    @#93 (Noddy93):

    I have yet to see anything that indicates Mr. Waits misled Frito-Lay into thinking that he has authorized them to use his song. They asked, he said no, they gave him a one-finger salute as they hired someone to sing in his style. Sort of sounds like they were daring him to sue if you ask me. Now, sometimes you get the bear, but sometimes the bear get you.

  41. Takuan says:

    Clean ‘em out Devo!

  42. zuzu says:

    Not the way the music business works, or will ever work. We musicians invest years of labor/money into creating music and getting it recorded. Then you hope people like it enough to compensate you.

    Then you need to change your business plan to one that has not been rendered obsolete / unsustainable.

    (Talk to the buggy whip manufacturers about the automobile sometime.)

    There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.

    Robert A. Heinlein

  43. Nores says:

    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.

  44. Thebes says:

    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.

  45. Marja says:

    Copyright is extortion.

    Um, yeah, McDonalds, but it’s still extortion.

  46. jonathan_v says:

    @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.

  47. Takuan says:

    copyright is not the point here. McDonalds is evil.

  48. Eadwacer says:

    Devo? I thought it was Spaceman Spiff!

  49. Waterlilygirl says:

    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.

  50. mightymouse1584 says:

    Whats a devo?

  51. slgalt says:

    Whip ‘em good!

  52. shmengie says:

    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.

  53. manicbassman says:

    are we not men?

  54. naefspiel says:

    I’m pretty sure that Mark Mothersbaugh has done music for McD
    TV commercials in the past.

  55. Battlehobo4000 says:

    Haw haw haw @ the last line. I’d be doubly offended too.

  56. jonom says:

    we are devo.

  57. TonksPlum says:

    The ironic thing is.. These companies being sued for copyright infringement are the same one who smacked around people in the past for lesser offenses around the same area..

    That’s karma for you.

  58. Matt Sanderson says:

    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.

  59. nikos says:

    ‘a’ devo is de-evolution.
    “Are we not men?
    We are Devo.
    D-E-V-O.”

  60. Billoney says:

    These two should be making sweet, sweet love…

  61. Epicanis says:

    Trademark, sure. But can you REALLY “copyright” a HAT? (I thought that’s what “Design Patents” were for…)

  62. cory says:

    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.

  63. zuzu says:
    Not the way the music business works, or will ever work. We musicians invest years of labor/money into creating music and getting it recorded. Then you hope people like it enough to compensate you.

    Then you need to change your business plan to one that has not been rendered obsolete / unsustainable.

    ‘The snail! The snail!’, they cry. ‘How can we possibly escape!?’

  64. Anonymous says:

    @#109 Zuzu

    “What’s complicated for me is why I don’t need permission but McDonalds does.”

    Seriously?
    Your personal energy dome halloween costume does not constitute commercial exploitation. McDonald’s usage of said domes/likenesses to sell a toy/crapburger on a massive nationwide scale does. Again, not particularly complicated.

    “Why should they be able to exert control over what others do with their own tangible property?”

    The energy dome/obvious DEVO likeness is not McDonald’s “own tangible property”. Furthermore, it implies endorsement. Commercial endorsements typically (and appropriately) require negotiated compensation. and permission.

    “Presumably Devo found a way to make the song/video, and that was the appropriate time for compensation.”

    Not the way the music business works, or will ever work. We musicians invest years of labor/money into creating music and getting it recorded. Then you hope people like it enough to compensate you. Just because DEVO is a famous band that at one time was on a major does not mean that they’re loaded and/or greedy (which seems to be the meme behind much of the anti-DEVO sentiment). Mostly musicians make money through publishing/liscencing or touring. I think use of their likeness to sell garbage food pretty clearly constitutes a liscencing issue. Which requires permission, etc.

  65. Torley says:

    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

  66. Bennessy says:

    “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.

  67. Takuan says:

    very well; The Clown is Evil, the corporation is merely a soulless, monstrously wicked, exploitative predator.

  68. Cupcake Faerie says:

    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’.

  69. FredicvsMaximvs says:

    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?

  70. slywy says:

    Have kids really heard of Devo?

  71. Mikey Likes BoingBoing says:

    Whip McDonalds…Whip ‘em good!

    Yay Devo, Boo McDonalds.

    EOT

  72. BlackAndy says:

    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.

  73. Anonymous says:

    just because it’s an upturned flower pot doesn’t mean sh*t… let’s just ask what would happen if the hip-hop doll in the series was wearing a clock around his neck – is that just a clock? or is it a reference to Flava Flav and PE? it sems more to me an issue of identity theft: flower pot + ‘new wave’ = devo
    note- as I’m typing the squiggly words that stop spam below, please note that one of my words to type was “men”… we are devo.

  74. aldasin says:

    “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?

  75. zuzu says:

    The difference is that the people in Devo are people. McDonalds is not a person (except legally) it’s a huge mega-corp. We don’t need to defend the rights of corporations to exploit us through the expropriation of culture.

    I’m no fan of the legal fiction that corporations are persons; I’d like to see that court interpretation of the 14th Amendment eradicated right along with “intellectual property”. But, “exploit us through the expropriation of culture”, gimmie a break! Exploitation my ass.

    The British salt tax imposed on India was exploitive, not this plastic toy.

  76. eustace says:

    Yes! Can has pizza!
    uh, trick question?

  77. Eric Anderson says:

    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.)

  78. mekrod says:

    Takuan I don’t think I did anything wrong except correct a person that has been here longer than me. Tried to fix some misquotes and such. I’ve seen way worse on here. Guess I’ll just bide my time somewhere else. Whatever…

  79. zuzu says:

    copyright is not the point here. McDonalds is evil.

    Because two wrongs do make a right?

    (How convenient it must be to compartmentalize your thinking like that.)

    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.

    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.

    Devo doesn’t want anyone to think they sold out to a corporation.

    Ahem, “When a bad spill comes along, you must swiff’ it.”

  80. thecat17 says:

    re: the Lady K vs. Sega case

    http://www.ladykier.com/segacase.htm

    The link above contains the evidence that was submitted.

  81. Takuan says:

    if you think I’m passing up a chance to take a slash at MCDevils – nope!

  82. BlackTiger says:

    @ #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…

  83. Anonymous says:

    not sure if anyone is aware
    but mark and bob mothersbaugh did music for a series of videos mcdonald’s released

    evidence: (skip to 5.17 in the video)
    http://www.youtube.com/watch?v=udqESJlo18o&feature=channel

  84. zuzu says:

    if you think I’m passing up a chance to take a slash at MCDevils – nope!

    “Good. Use your aggressive feelings, boy! Let the hate flow through you.”

    “If only you knew the power of the dark side.”

  85. Irene Delse says:

    Frank #89: Copyright is a choice.
    Trademark is a choice.
    Creative Commons is a choice.

    Like religion, chose one but don’t damn the other choosers.”

    Zuzu #101: ” “Copyright is a choice”.

    Actually, it’s not. It’s automatic, ever since 1978.”

    Zuzu, if you misquote someone, you’ll succeed to pick holes in what they say, but you’ll only be defeating a straw man.

    Because even with automatic copyright, artists can choose whether they release their work commercially or not, to use CC or not, etc. And even CC is not the same as just giving everything to everybody for free. I am happy with putting my short stories online as e-texts, for instance, but strictly for non-commercial uses. And I would strongly object if somebody was using them to make money without giving me some, or at least asking me permission.

    And you misrepresent what Anonymous said at #112 when you blithely tell them to “change their business plans”.

    What Anonymous said:

    “We musicians invest years of labor/money into creating music and getting it recorded. Then you hope people like it enough to compensate you.”

    Note that this is still true if the artist release his/her stuff under CC and asks people who like it to pay for a copy or send money via Paypal! It’s basically: support the artists you like with your money, that’ll encourage them able to make more stuff.

    How is that similar to the famous buggy whip manufacturers?

    So, nice try, but study Cory’s articles a bit more, next time!

  86. Takuan says:

    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

  87. mekrod says:

    wow. I agree to hereby skip over your posts in the future andy. good luck with life.

  88. zuzu says:

    Well, aren’t those remixing rights a matter of NOT using them for profit?

    No.

  89. Takuan says:

    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!

  90. Takuan says:

    I won’t tell you what the disgruntled employees do in the pickle pail.

  91. bolamig says:

    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.

  92. Jack says:

    @ 24 Cory:

    Devo doesn’t want anyone to think they sold out to a corporation.

    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.

  93. adsum says:

    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.

  94. minTphresh says:

    “and he…had a job, and he…wore a hat, and he,,,brought home the bacon so that…no one knew!”

  95. BlackAndy says:

    No, mekrod, you attacked me rather viciously and presented arguments without defending them. Then you misrepresented my argument and attacked the resulting straw man – I never argued that any entity in the fast food or costume industries was responsible for releasing toxic chemicals into groundwater. There are however a number of manufacturing companies, including a few in my area, who are responsible for situations similar to what I described, and I was presenting this as an example of generic corporate irresponsibility and wrongdoing.

    Personally I’ve already written you off as a troll, as I stated above, and here I see that you continue in your attempts to provoke people to pay attention to you. I have, twice now, but I’m done. If other forum denizens (sorry Takuan that’s the best I can come up with to describe you) want to continue to interact with you, then more power to ‘em. If you decide to stick around (and if you can name-drop TG then you are probably someone who can contribute to the discussion on the site), then to prevent further disemvowelings you may want to read the moderation policy. You can find a link to it in the right-hand column near the top under “Don’t Miss”.

  96. Zinjanthropus says:

    It’d be better if XTC sued McDonald’s about their plans for Nigel.

  97. sonny p fontaine says:

    it’s Pajama Sam dressed in his DEVO costume. Humongous Entertainment should get in on that action.

  98. Takuan says:

    the idea is the maximum of dialog with the minimum of offense – intended or not. Take a breather.

    Denizens…..mmm, I think “inmates” might be better?

  99. BubbaFett says:

    It’s obviously a Devo rippoff. Why would anyone argue for McDonald’s to be able to use the image of an individual (or in this case several individuals) without their permission?

    It’s been established long ago that people have a right to how their image is used in relation to selling a product. How is this any big difference?

    Plus, it’s a tossup between which is more evil, McDonald’s or American Idol…The people involved with the production of this should have known better.

  100. Waterlilygirl says:

    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.

  101. zuzu says:

    If all digital media must be free where do I make my living? In short, in the “all digital media wants to be free” model. How is monetary value calculated and then subsequently rewarded? Reputation? You can have a great rep and live under the freeway in a cardboard box.

    I gave many alternatives already in comment #109.

    I am still very nervous about just giving everything away on the hope someone likes it enough to pay me. If my only product is digital where do I earn a living?

    Basically, as I’ve attempted to assert before, you need a business model where people pay you for shooting the photographs, not for the prints after you’ve already taken the photos. People are paying for your unique skill as a photographer, not for the products derived there from. Just as corporate open-source software authors are paid to write the software (because people need software with that functionality to exist), but not to sell copies of that software in boxes, the way Bill Gates conned everyone into thinking how it should be done.

    And so much for Ayn Rand and her arrogant philosophy. I’m reasonably confident that nobody ever has or ever will derive an ought from an is. More precisely, my claim is that substantive ought-statements can’t be validly derived from any set of is-statements that do not themselves presuppose substantive ought-statements.

    Ok, first of all, I don’t understand why you keep bringing Ayn Rand into this. I’m hardly interested in championing her perspective. Secondly, I was citing the is-ought problem in reference to positive economics versus normative economics. When you said, “Economic theory should serve our needs not the other way around”, I took that to mean you supported a normative analysis of economics. I agree with David Hume, not Ayn Rand. But this means positive analysis.

    Because even with automatic copyright, artists can choose whether they release their work commercially or not, to use CC or not, etc.

    Point being that copyright is assumed unless one proactively discards it — which even then isn’t easy (and sometimes impossible) depending on the jurisdiction.

    Note that this is still true if the artist release his/her stuff under CC and asks people who like it to pay for a copy or send money via Paypal! It’s basically: support the artists you like with your money, that’ll encourage them able to make more stuff.

    Hey, whatever business model works, but it has to actually work. Just because you invest a large amount of resources into something doesn’t give you the right to demand a return on investment. Extortion after the fact of invention hardly seems legitimate to me, compared to business models where people pay to realize an invention in the first place.

  102. IvyMike says:

    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.

  103. zuzu says:

    So, nice try, but study Cory’s articles a bit more, next time!

    Look, Cory’s just this guy, you know? ^_^

  104. Antinous says:

    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.

  105. Takuan says:

    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

  106. minTphresh says:

    ” he was a mongoloid (he was a mongoloid!), happier than you and me/ he was a mongoloid (he was a mongoloid!) one chromosome too many/,he was a mongoloid (he was a mongoloid!) and he determined what he could be”

  107. Anonymous says:

    McD sues everyone else for any minute “copyright” infringement and should not complain about being on the opposite end of the standard they have established.

  108. BettyWu says:

    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?

  109. Anonymous says:

    “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!

  110. mekrod says:

    @111 BLCKNDY
    Yh lk t rpt thngs thr ppl hv sd t mk myslf fl mprtnt t. hv sn th rnl n mddl schl, hgh schl, nd cllg. ‘m nt n th cmp f “pnt stff tht lks lk stff hr hr”, jst thnk y shld pt n nc f thght nt th prjct f y r gng t xpct ppl t tk y srsly. Tht s why clld hr hck. Nw Thrbbng Grstl (bck whn thy wr Cm Trnsmssn) hd nc pc f rt clld “Prstttn” n whch cpl hd sx bhnd rd vlvt rp (dn’t tch th xhbt…nlss thy sk y t).
    Ww, dd nswr my wn qstn tht ndd wth prd, mkng t sttmnt wth n xmpl fr th *crng* tchnrt t ndrstnd. Grt jb! Y gt str!
    You mention a corporation that lets toxic chemicals leak into the ground and so forth. I am quite certain BOTH Mickey D’s and the Chinese warehouse that produced the hats both do a bit of dumping of less-than-savory chemicals. It’s cool though, we all pick our battles.

    S h thnks fr flffng p nll rgmnt s y hv smthng t pst. gss shld pst wk lnk r smthng t mk t ffcl bt ssm mst srs hv n Q n xcss f crrt.

  111. zuzu says:

    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.

    Perhaps you would enjoy someone filing some government paperwork authorizing use of police force to prevent you from using your own tools to create goods and services which have been “patented” or “copyrighted”, so that only one person or company has an exclusive monopoly on those goods and services.

    You know, kinda like Microsoft Palladium.

    Or, precisely the opposite of tools for conviviality such as the Personal Computer and Free Software.

  112. Antinous says:

    Zuzu,

    You persist in viewing life through a pinhole bounded by theoretical abstractions.

  113. MarkM says:

    @ #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 —-!”)

  114. saint_al says:

    This toy just looks too *old* to be in a Happy Meal safely.
    : P

  115. zuzu says:

    You persist in viewing life through a pinhole bounded by theoretical abstractions.

    Are you referring to positive analysis? Eppur si muove.

  116. noen says:

    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.

  117. Yhancik says:

    And what about jQuery ? ;)

  118. zuzu says:

    theft of copyrighted materials

    No such thing. Theft, according to common properly law, requires denial of use. I presume you meant copyright infringement.

    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.

    CC and the GPL are really only recursive hacks to use copyright against itself. Without so-called “intellectual property” they wouldn’t be necessary; people would be free to reuse, remix, and reverse-engineer.

    And one must bear in mind that Zuzu comes from a rather extremist economic theory that makes Libertarianism look sane (which it is not).

    Hey, marginalization is fun! :P

  119. eclectro says:

    @ 23 Epicanis said

    Trademark, sure. But can you REALLY “copyright” a HAT? (I thought that’s what “Design Patents” were for…)

    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.

  120. BlackAndy says:

    :) Thanks Takuan, good advice.

  121. Marja says:

    I wasn’t pointing to hypocrisy on anyone’s part.

    I was stating a fact: copyright is extortion.

  122. Jed Alexander says:

    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.

  123. drblack says:

    I swear I read WAYYY back when DEVO first appeared in these “hats” that Mothersbough said they were flower pots from a discount store.
    I despise McDonalds Rat products and American Cruise ship lounge singer Idol as well but this seems a bit of a stretch.
    They should both be sued for bad taste.

  124. ROSSINDETROIT says:

    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.

  125. BlackAndy says:

    not @#115 (mekrod):

    Sorry everyone looks like I fed a troll. Whoops.

  126. Takuan says:

    are we not Mutants?!

  127. ROSSINDETROIT says:

    Missed it by *that* much.

  128. Antinous says:

    You owe me.

  129. eustace says:

    aaah, and you were so close.

  130. noen says:

    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.

  131. mark zero says:

    I wonder if this could be seen as a parody, and thus protected expression?

    I got a swelling itching brain…

  132. Digital Artz says:

    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.

  133. Digital Artz says:

    I might add that my Mom had a plant vase
    exactly like that in the 1930′s so!

  134. zuzu says:

    It’s been established long ago that people have a right to how their image is used in relation to selling a product. How is this any big difference?

    That’s precisely the premise I take issue with. Why should people have a right to how their “likeness” is used by others? Unless you want to make a fraud claim — e.g. that McDonalds advertises it as an Official Devo Toy (i.e. lying) — I see no reason why anyone cannot also use an “energy dome” in their own works. It’s called reusing, or sampling, or remixing. And it doesn’t prevent Devo from continuing to use their “energy domes” at the same time.

  135. Jed Alexander says:

    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!

  136. Chocolatey Shatner says:

    I’m a librarian. I am not a copyright lawyer by any stretch of the imagination. However, I think that there are several issues here that are getting confused.

    1. It is immaterial to this instance of possible infringement whether Devo has previously sold the rights to their music for commercials. Creative people sell their creations to make a living. You can call them “sellouts” if you like, but that does not mean they deserve to be ripped off.

    2. There is a difference between “fair use” and “infringement”. For example, it would be fair use to create your own Devo Halloween costume for you to wear; it would be infringement for you to make and sell Devo costumes or even to distribute them for free. The one is for your personal use; the other is using someone else’s idea to make money for yourself or taking someone else’s idea and making it over in your image.

    While the hats and sunglasses may be part of Devo’s “look”, I don’t know if it is possible to consider that as a trademark or not. It is not as though McDonald’s had people performing their music under the name “Devo” wearing that attire. On the other hand, that appearance is strongly associated with Devo, and since they do not support the way their image is being used, I think they are within their rights to sue.

    Oh, and I’m sorry I was kinda late to the argument here, but I kinda had a cold and wasn’t able to do much more than blankly stare off into space the entire weekend. And that was without medication, mind you.

  137. zuzu says:

    From your ideological perspective, that’s correct. Not however, from mine.

    Not only my ideological perspective, but the difference between common property law and the copyright clause of the United States constitution.

    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

    Greenspan was identified as a Monetarist, so he has far more in common with Milton Friedman than Ludwig von Mises. Even still, he wasn’t much of a Monetarist as chairman of the Federal Reserve, and his stewardship of monetary policy created an asset bubble contrary to the Austrian theory of money and credit — which in fact predicted the current economic crisis as a consequence of said monetary policy. (The LvMI community has been vocal critics of Greenspan, and Bernanke, long before it was “popular” to do so.)

    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?

  138. buddy66 says:

    “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!

  139. mgabrysSF says:

    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!”

  140. Difference Engineer says:

    Devo signed to Warner Brothers Records—a corporation—in 1976.

    Yeah, guys. Devo is so corporate they even have a corporate anthem. Jeesh.

  141. buddy66 says:

    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.”

  142. Antinous says:

    But it’s a fact. Didn’t you hear?

  143. Astroknott says:

    Dv! Whny Btt Crybby! W! Bg vl Mc D STL my trdd ht.

  144. jennybean42 says:

    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.

  145. mekrod says:

    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

  146. RJ says:

    @ #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.

  147. Shawn Wolfe says:

    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 Devoâ„¢ 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.

  148. Frank_in_Virginia says:

    Q: Are We Not Men? A: We Are Happy Meals!

  149. Frank_in_Virginia says:

    Copyright is a choice.
    Trademark is a choice.
    Creative Commons is a choice.

    Like religion, chose one but don’t damn the other choosers.

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