Can a unicorn toy that poops sparkling slime also function as a form of cultural criticism?
Or, if that toy tweaks the lyrics of a popular song, is it simply exploiting the market for that song without contributing anything to the cultural discourse?
These are the questions that will, sooner or later, be submitted to a federal judge in the Southern District of New York, after BMG Rights Management filed a lawsuit on Thursday against the manufacturer of the Poopsie Slime Surprise collectible toy.
Poopsie Slime Surprise is a brand of slime-pooping unicorn that currently retails for $100 to $300 on Amazon. In addition to pooping slime, the toy also dances to a song called “My Poops” whenever its heart-shaped belly-button is pressed. The manufacturer, MGA Entertainment, has also produced an animated video in which unicorns dance to the song.
“First, the title of the infringing work is ‘My Poops,’ which is an obvious play on the name of the copyrighted composition, ‘My Humps,’” wrote BMG’s lawyer, Seth L. Berman, of Abrams Fensterman LLP.
Berman goes on to list other similarities, including the melody, countermelody, lyrics, chord progression and the use of a lead singer who “uses a similar delivery and vocal inflections as used by Fergie on the original sound recording.”
MGA Entertainment first released the toy in time for the Christmas 2018 shopping season. The suit alleges that when BMG became aware of the infringement, it sent MGA a cease and desist letter, which the toymaker ignored.
According to the suit, the company has not licensed the song and yet continues to profit from it, having “generated tens of millions of dollars in revenue for Defendant.”
MGA did not respond to a request for comment on Friday.
The company could argue that “My Poops” 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 parody can be a form of “comment” or “criticism” on the original work, which is protected by the Copyright Act of 1976.
But that does not mean that the toymaker is automatically in the clear.
Judges look at “fair use” claims on a case-by-case basis, applying a four-factor analysis. At its heart is the question of whether the new work is transformative of the original, or whether it simply copies the original and substitutes for it in the marketplace.
Berman is no stranger to such analyses. A few years ago, he represented the estate of the Notorious B.I.G. in a copyright lawsuit. A poet, Abiodun Oyewole, alleged that Biggie stole a three-word phrase, “Party and Bullshit,” from a 1968 poem entitled “When the Revolution Comes.” Berman argued that it was fair use, and prevailed.