Could a unicorn toy that poops sparking slime also serve as a form of cultural criticism?
Or, if the toy tweaks the lyrics of a popular song, is it exploiting the market for that song without contributing to cultural discourse?
Those questions will, sooner or later, be submitted to a federal judge in the Southern District of New York, after BMG Rights Management filed a lawsuit Thursday against the maker of the Poopsie Slime Surprise collectible toy.
Poopsie Slime Surprise is a brand of slime-pooping unicorns that currently retail for $100 to $300 on Amazon. In addition to popping slime, the toy can dance to a song called “My Pups” whenever its heart-shaped belly button is pressed. The makers, MGA Entertainment, have also created an animated video featuring unicorns dancing to the song.
BMG’s lawyer alleges that “My Poops” infringes on Black Eyed Peas’ 2005 hit single, “My Humps,” for BMG’s corporate acquisition of 75% of its publishing rights.
The case claims — and a review of each song’s Genius annotation confirms — that the two compositions bear a strong resemblance.
“First, the title of the infringing work is ‘My Pups,’ which is an obvious play on the name of the copyrighted work, ‘My Humps,'” wrote BMG’s lawyer, Seth L. Berman, of Abrams Fensterman LLP.
Berman lists other similarities, including melody, countermelody, lyrics, chord progressions, and the use of a lead singer who “uses a delivery and vocal inflection similar to that used by Fergie on the original sound recording.”
MGA Entertainment first released the toy for the Christmas 2018 shopping season. The suit alleges that when BMG became aware of the infringement, it sent a cease and desist letter to MGA, which the toymaker ignored.
According to the lawsuit, the company did not license the song and still continues to profit from it, “making millions of dollars for the defendant.”
MGA did not respond to a request for comment on Friday.
The company may argue that “My Pups” is a parody of “My Humps” and is thus protected as “fair use.” In Campbell v. Acuff-Rose Music in 1994, the Supreme Court held that a parody can be a “comment” or “criticism” on the original work, which is protected by the Copyright Act of 1976.
But that doesn’t mean the toy maker is automatically in the clear.
Judges look at “fair use” claims on a case-by-case basis, applying a four-factor analysis. There is the question of whether the new work is transformative of the original or whether it merely copies the original and substitutes it in the market.
Berman is no stranger to this kind of analysis. A few years ago, he represented the estate of Notorious BIG in a copyright lawsuit. A poet, Abiodun Oyewole, alleged that Biggie plagiarized the three-word phrase “party and bullshit” from a 1968 poem titled “When the Revolution Comes”. Berman argued that this was fair use, and common.