Dumb Starbucks and the Dumb Evolution of Parody Laws

Jacob Harper  |

It’s called Dumb Starbucks. From the sign above the door to the promotional CDs at the counter, quite nearly everything in Dumb Starbucks resembles an actual Starbucks (SBUX) . Albeit with the one key difference. Everything in the store is appended with the word “dumb.”  

After opening on Feb 8, every day since has seen lines for Dumb Starbucks wrap around the block. From open to close, curious Angelinos queued up to try a “dumb coffee,” a “dumb latte,” or a pastry served straight out of a Vons supermarket box that looked, well, dumb.

So it’s dumb, and it’s popular, but is it good? I went to Dumb Starbucks on Feb 9, and can attest that Dumb Starbucks is not just a clever name. The coffee is terrible. Just really, really atrocious. To add dumb insult to injury, the cheap paper coffee cups – printed with a “Dumb Starbucks” parody logo – smear greasy green ink on your hand.

It’s a one-note joke with a terrible product behind it. Thus, it fits right in line with the most important challenges to American fair use laws in history.

Fitting as well that it appears the whole thing was a stunt for the TV show Nathan for You. The show is produced by Abso Lutely Productions, the brainchild of Tim Heidecker and Eric Wareheim, comedians noted for their unique approach to satire.

Rather than strain to be good, or incisively clever, Dumb Starbucks is using a single, blunt tool to directly attack the construction of parody laws in the United States. Being good or funny or even that amusing isn’t the point. In fact, it would be distracting.  

Dumb Starbucks as a concept is so dumb it just lumbers right to the heart of the matter. How far can someone go in the pursuit of satire?

Pretty far, really. Precedent really favors parodists and satire – no matter how dumb.

Hustler Magazine vs. Falwell

Hustler vs. Falwell concerned a parody ad Hustler published in 1983 in which Moral Majority crusader Reverend Jerry Falwell recounts losing his virginity to his mother in an outhouse. Not exactly subtle, but again, that’s not the point.

The Supreme Court sided with Hustler publisher Larry Flynt in the matter, and established the precedent that parody is fully protected by the First Amendment, as long as it is assumed nobody is “fooled” by the parody. That is, nobody really believed Jerry Falwell lost his virginity to his mother in an outhouse, so Falwell couldn’t claim emotional distress over people believing that to be true.

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Dumb Starbucks would have to be able to claim that no one would mistake their store for an actual Starbucks. This could be tricky, as merely appending the word “dumb” to everything while otherwise playing it straight is a pretty thin layer of satire. And Dumb Starbucks could have to lean on their pre-emptive defense in their posted FAQ that claims Dumb Starbucks is not a business, but an “art installation.”

L.L. Bean vs. Drake Publishers

Rather than open the dumb can of worms that is “what is business and what is art?” let’s just assume a separatiofor now and look at  businesses that have tried to claim parody in the light of trademark infringement. Like Hustler, L.L. Bean vs. Drake Publishers was a 1984 case concerning a pornographer. And once again, the pornographer prevailed.

In the summer of that year Drake  put out a parody of an L.L. Bean catalogue called L.L. Beam’s Back to School Sex Catalogue. Like Dumb Starbucks, Drake used a near exact replica of their target’s logo, with a direct, crude parody of an L.L Bean catalogue.

The 1st Circuit Court sided with Drake, calling the sex catalogue “trademark parody.” This certainly is what Dumb Starbucks is reasoning. However, Drake was also protected because they weren’t selling goods or services, which could constitute trademark infringement.

Dumb Starbucks gives their products away while consistently insisting they are an art installation, and the coffee they provide is art. If and when they do start charging for their “art,” they could be in trouble.   

Jordache vs. Hogg Wyld

And now for that dumb can of worms. An important legal demarcation between art and commerce (at least in the eyes of trademark law) was established when Jordache Jeans unsuccessfully sued retailer Hogg Wyld to stop production of the "Lardache" line of jeans. An appellate court found that Lardache Jeans, while hemming very closely to Jordache in its design and logo, was still protected as parody, even thought they were selling a parody good.

The central question the court posed was, did people buy jeans called “Lardache” when they thought they were buying a Jordache product? The courts said “no, nobody is that dumb.”

To follow that line, Dumb Starbucks just has to assert the same thing. Nobody thinks this is actually Starbucks.

Campbell vs. Acuff-Rose Music

Perhaps most cogent to Dumb Starbucks concerns profiting as a result of copyright parody. In this case, rap group 2 Live Crew asked music publishing firm Acuff-Rose Music if they could parody the Roy Orbison song “Oh, Pretty Woman.” 2 Live Crew was denied, but released their parody song “Pretty Woman” anyways.    

Acuff-Rose sued, and the case went all the way to the Supreme Court. The Court sided with 2 Live Crew, and found that commercial character is but one factor when weighing whether or not copyright has been infringed.

It’s unclear how much longer Dumb Starbucks will operate. And the fact that it was done as part of a TV show certainly makes it a lot easier to claim parody. But earlier cases certainly bode well for Dumb Starbuck’s defense.


UPDATE: Dumb Starbucks was closed on the afternoon of February 10 by health inspectors for operating without a permit. It is unclear at this time if they will reopen, but they could stillk possibly face a lawsuit from Starbucks.

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