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Tin Pan Apple, Inc. v. Miller Brewing Co., Inc.

District Court, S.D. New York
737 F. Supp. 826, 17 Media L. Rep. (BNA) 2273, 15 U.S.P.Q. 2d (BNA) 1412 (1990)
ELI5:

Rule of Law:

The appropriation of a copyrighted work in a commercial advertisement, done solely to sell a product and without adding new commentary or creative expression, does not qualify as a parody and is therefore not a protected "fair use" under copyright law.


Facts:

  • Mark Morales, Darren Robinson, and Damon Wimbley were professional musicians who performed together as the rap group the 'Fat Boys'.
  • The Fat Boys were known for their distinctive musical style, physical appearance, and song lyrics which conveyed positive messages to youth, such as staying in school and avoiding drugs and alcohol.
  • Plaintiffs Tin Pan Apple, Inc., Sutra Records, Inc., and Fools Prayer Music, Inc. held various registered copyrights for the Fat Boys' musical compositions and sound recordings, as well as a service mark for the name 'FAT BOYS'.
  • Miller Brewing Co. and its advertising agency, Backer & Spielvogel, Inc., approached the Fat Boys to appear in a television commercial for Miller Beer.
  • The Fat Boys declined the offer to appear in the commercial.
  • Subsequently, Miller Brewing and its agency created and broadcast a television commercial featuring comedian Joe Piscopo and three heavyset, Black male actors who were look-alikes of the Fat Boys.
  • The actors in the commercial performed in a 'rapping' style that imitated the Fat Boys' signature performance style.

Procedural Posture:

  • The plaintiffs (the Fat Boys and their corporate entities) filed an amended complaint in the U.S. District Court against the defendants (Miller Brewing Co., its ad agency, and Joe Piscopo).
  • The complaint asserted nine claims, including copyright infringement, trademark infringement under the Lanham Act, and violations of New York state law regarding privacy and publicity.
  • Defendants filed a motion under Rule 12(b)(6) to dismiss all nine claims for failure to state a claim upon which relief can be granted.

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Issue:

Does the use of a copyrighted work's style and likeness in a television commercial, created solely for commercial profit after the original artists declined to participate, qualify as a parody and thus constitute a 'fair use' defense against a claim of copyright infringement?


Opinions:

Majority - Haight, District Judge

No. The use of a copyrighted work in a television commercial created solely for commercial profit does not qualify as a parody and is therefore not a protected 'fair use.' The court reasoned that parody as a branch of fair use is meant to foster creativity and comment on an original work, not to simply appropriate it for commercial gain. Citing D.C. Comics v. Crazy Eddie, the court held that an appropriation of copyrighted material 'solely for personal profit, unrelieved by any creative purpose, cannot constitute parody as a matter of law.' The Miller Beer commercial's purpose was entirely to sell beer and did not build upon the original work or contribute anything new for humorous effect or commentary. Furthermore, the allegation that the defendants hired look-alikes only after being rebuffed by the plaintiffs themselves suggests bad faith, which weighs against a finding of fair use. Therefore, the copyright infringement claims cannot be dismissed on the basis of a parody defense.



Analysis:

This opinion reinforces the critical distinction between a legitimate parody, which comments on or criticizes an original work, and a purely commercial appropriation that merely mimics it to sell a product. The decision establishes that the 'parody' defense under fair use is not a shield for advertisers who capitalize on a famous artist's style and identity without permission. It solidifies the principle that a work's commercial nature is a significant factor weighing against a fair use finding, especially when coupled with evidence of bad faith. This case serves as an important precedent in intellectual property law, clarifying the limits of fair use in the context of advertising and celebrity likeness.

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