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Hamburgled! Singing Sock Puppet Tossed Out of Court in McDonald’s Copyright Case

In 2008, “The Big Mac Chant Contest” ran on MySpace, asking contestants to rework the famous Big Mac jingle (“Two all beef patties …”) for a shot at having their take used in an official McDonald’s ad. Dan Calden of Norwood, performing as MC Smiley Dan, made a goofy video singing along to his barebones remix, accompanied by a rapping sock puppet. He wasn’t chosen as a winner, but in 2009, he (and millions of others) saw an ad for Filet-o-Fish that looked awful familiar. So he filed a lawsuit for copyright infringement against McDonald’s and their ad agency, Arnold Worldwide. In other words, a classic showdown: MC Smiley Dan vs. The Grimace!

Here are the two creative works at issue — Compare and contrast, copyright fans! As the Court describes:

Calden’s entry shows a close-up of a man sitting on a couch inside a house.1 The man is wearing sunglasses and a t-shirt, and has a gray-and-white sock puppet with hand-drawn features on his left hand. Synthesized music begins to play in the background, and the man and the sock puppet sing along. At first the lyrics are: “Big Mac. Big Mac. Big Mac. Everybody wants to eat a Big Mac.” This repeats several times before the music transitions, and the sock puppet begins to lip-sync a solo rap version of the Big Mac Chant. The man joins back in on lyrics about the sesame-seed bun. The man and the sock puppet then repeat the song.

The commercial depicts a man, sitting in a garage, eating a Filet-O-Fish sandwich. A blue fish mounted on the wall begins singing: “Give me back that Filet-O-Fish, give me that fish. Give me back that Filet-O-Fish, give me that fish. What if it were you hanging up on this wall? If it were you in that sandwich you wouldn’t be laughing at all.” The man watches the singing fish and continues to eat his sandwich. Shortly thereafter, another man walks into the garage. He looks at the fish, and then at the original man, who shrugs and continues eating. The commercial ends with a close-up of the sandwich with a voice-over describing an “Extra Value Meal Deal.”

Insert pun about something being fishy here.

Calden sued pro se — without a lawyer — and things did not go well for him. He filed the complaint in February 2012 in Norfolk Superior Court, but Arnold had the case removed to federal court. Judge Saylor made short work of the case, dismissing all claims on November 27, 2012. First, Calden hadn’t registered the copyright, which is required before you can bring suit. Judge Saylor also didn’t see enough similarity between the two works: “The only arguably similar elements are that both involve men in indoor settings with background music, and singing non-human puppets/stuffed animals. These elements are all abstract ideas and concepts, none of which are protectable by copyright.” Copyright doesn’t protect ideas — it protects how those ideas are expressed. You can’t incant the phrase “copyright infringement!” to stop someone else from using such stock ideas.

Calden also accused the defendants of “intellectual property theft” and “impropriety in the method of acquiring an idea.” The Court saw these allegations as little more than rephrased versions of the copyright claim and dismissed them. The Court also dismissed Calden’s breach of contract claim, since he didn’t point to any such contract, and his claim for “interference of monies earned,” which is not a recognized cause of action.

So the golden arches keep their gold and MC Smiley Dan has one less reason to smile. He should have just said that he’d been Hamburgled. That’s a claim anyone can understand.

One Comment on “Hamburgled! Singing Sock Puppet Tossed Out of Court in McDonald’s Copyright Case”

  • SJD November 28th, 2012 12:36 pm

    Calden should have solved the problem the old-fashioned way by taking the justice in his own hands. Sometimes it works with McDonalds.

    Long time ago, in a Baltic country (Estonia?), a short-sighted manager locked the bathroom for non-patrons. Local youth, who enjoyed a free and relatively clean bathroom, stole the mannequin Ronald McDonald and kept mailing his severed fingers to the management every day, until the management was convinced that the guys meant business and reluctantly reverted the bathroom policy.

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