Legal Commentary

Everything is a Law School Hypo

By Professor University of Miami School of Law

I enjoyed this video, Barbri Girl, from the 2008 NYU Law Revue.

I’m afraid, however, that the reason I liked it so much isn’t simply that it’s sort of funny, and at its start so true to life. No, it’s because there’s a legal issue embedded in here — probably unintentionally — regarding whether anyone has grounds to sue over this video. And that just seems so appropriate given the subject matter.

See, the song on which this skit is based is the wonderful/awful “Barbie Girl” by Aqua, a Danish-Norwegian pop-punk band. The song was the subject of a major trademark lawsuit by Mattel.

A video accompanying the original song is available on YouTube. I’m pretty sure I saw a much less camp, and somewhat harder-edged, performance of it back when the song was being litigated — something vaguely like a studio version of the start of this — but maybe I’m imagining things.

Getting back to the law, Mattel was basically handed its head on a plate by the 9th Circuit. In a decision sure to be in every IP casebook, Judge Alex Kozinski not only said the song was protected as a parody under the First Amendment but concluded the decision with the admonition that, “The parties are advised to chill.” See Mattel Inc. v. MCA Records Inc., 296 F.3d 894 (2002).

But here’s where the fun starts: “Barbie Girl” was clearly a parody of the Barbie image. This video, however, is not. But that’s ok because as “BAR/BRI Girl” the trademark being parodied isn’t Mattel’s so they have no grounds for suit.

As for BAR/BRI themselves, they can’t sue, for the same reasons that Mattel’s suit against Aqua was baseless.

But here comes the (weak, legal) joke: the people who have a potential right of action against the NYU law students in the Barbri Girl video are Aqua! It’s a real stretch to say that the Barbri Girl video is a parody of Aqua’s song. [Contrast Barbri Girl with this “Ugly Girl” parody song, sometimes attributed to Weird Al Yankovic, here supported by some Sims 2 Machinima.] Rather, BarBri Girl appropriates the tune (and more) of Barbie Girl for a satirical purpose other than parody of the source. And — unless copyright law has changed since I last looked — that sort of satire isn’t necessarily a protected First Amendment use of a copyrighted tune, cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Dr. Seuss Enterprises v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997).

But don’t panic. Despite using the whole tune, and some of the look and feel of the original video, Barbri Girl is probably fair-use anyway, since the use is not commercially motivated and indeed is arguably for nonprofit educational purposes, and will have no “negative effect … upon the potential market for or value of the copyrighted work.” (per the Supreme Court in the 2 Live Crew decision).

And most importantly, I don’t think Aqua is going to sue.

By the way, none of this stuff is going to be on the bar exam.

Full post as published by Discourse.net on June 03, 2008 (boomark / email).