As discussed in a previous post, the Internet has made it easier than ever for fans of entertainment industry works to show their love. Obsessed fans of movies and TV shows can post what has come to be known as “fan-generated content”—tributes to their favorite works, usually in the in the form of pictures or videos, drawing on characters and stories created by others. For the most part, the industry has tolerated this practice; there are countless fan-generated works circulating on sites like YouTube, and not too many reports of lawsuits challenging them.
The industry appears to be drawing a line, however, when a fan attempts to turn her tribute into a profitable business. As reported here, streaming giant Netflix recently sued a musical that features content based on its popular Bridgerton series. And now a major movie studio has brought similar action against a gag restaurant that draws on an older, but still popular film.
The target of the lawsuit is JMC Pop Ups, LLC, which describes itself as “a small business that operates high-quality, limited existence ‘pop up’ restaurants, providing high quality food and entertainment to guests, while revitalizing and supporting struggling malls with increased consumer patronization and recognition.” Several of these restaurants have drawn on the popular works of others for their inspiration. For example, a “Galaxy Burger and Beyond” pop-up based on a spaceship in the Star Wars movie franchise; a “Moe’s Tavern” modeled after the bar of that name in The Simpsons; and a “Paddy’s Pub” event inspired by It’s Always Sunny in Philadelphia. Recently, a JMC popup took the form of a fast food restaurant named “McDowell’s,” and while the “McDonalds” restaurant chain instantly comes to mind, it’s a bit more involved.
One of the most successful films of 1988 was Paramount’s Coming to America, which starred Eddie Murphy as an African prince named Akeem who travels to America to find his bride. Long story short, he takes a job at a fast food restaurant named “McDowell’s.” The setup here is a running gag where the proprietor has stolen McDonald’s intellectual property, living in constant fear of a lawsuit over it. As the proprietor explains in one memorable line, “Me and the McDonald’s people, we got this little misunderstanding.” JMC’s latest pop-up is a direct reference to the “McDowell’s” gag in Coming to America, and Paramount is having none of it.
Last week Paramount filed a claim against JMC in the newly-formed Copyright Claims Board (sort of a small claims court for copyright actions), alleging that the McDowell’s pop-up infringes its copyrights in Coming to America and the more-recent Coming 2 America sequel. The complaint alleges:
In creating and marketing the Infringing Restaurant, JMC copied countless copyrighted materials from the works, including but not limited to the menu, the character names and likenesses, and [] recreations of [the] well-known McDowell’s restaurant from the Coming to America universe.
Specifically, the Infringing Restaurant’s menu used numerous well-known indicia of the Works, including the “Big Mick” with a “non-seed bun” (the “Big Mick” featured in Coming to America); the “Meatless Mick” (a play on the “Beyond Big McBurger” featured in Coming 2 America); the “Louie Anderson” (an actor in the Works); and the “Sexual Chocolate Cake Shake” (the name of the band from the Works). Further, the event had an “Employee of the Month” photo opportunity for guests, which was an award presented to Akeem in Coming to America.
As usually happens, there was some pre-lawsuit back-and-forth between the parties in an attempt to achieve informal resolution. In a letter to Paramount’s lawyers, we see JMC’s counsel offer its legal take on the unique situation:
The fundamental nature, and ongoing comedic theme, of the “McDowell’s” concept in the Films is the transparent use of, and infringement upon, McDonald’s intellectual property. The purported “elements” identified by Paramount concerning McDowell’s are merely McDonald’s trademarked properties and other intellectual property rights of McDonald’s, associated with the goods and services used by McDonald’s. The purported elements are otherwise derivative of McDonald’s intellectual property.
Of course, the Films use McDonald’s intellectual property in a satirical manner, constituting fair use. Nevertheless, Paramount’s utilization of McDonald’s properties on a fair use basis does not give Paramount its own copyright rights in its fair use of McDonald’s properties . . .. Paramount does not, and cannot, possess copyright or other intellectual property rights in McDowell’s or any other purportedly associated elements that are actually McDonald’s property, and JMC did not, and cannot, infringe upon any such non-existent rights of Paramount.
So clearly, JMC and Paramount “got this little misunderstanding.” Will be interesting to see how the case is resolved, and whether big players like Paramount will continue to use the Copyright Claims Board.