They've Got an Uninfringeable Urgh! (Devo Makes Plans for "New Wave Nigel")

In April, during the most recent season of American Idol, McDonald's restaurants offered a series of product tie-in "Happy Meals" containing small toy figures representing various popular musical genres.  USA Today provided this description at the time:

None of the toys is patterned directly after a specific Idol, yet a couple of the names are oddly suggestive.  You'll pick 'em out -- the genre-specific lineup of toy characters comprises Disco Dave, Rockin' Riley, Lil' Hip Hop (surprised there isn't already a rapper by that name), Hippie Harmony, Country Clay, Soulful Selma, Punky Pete and New Wave Nigel.

Here are three of the figures -- Nigel, Selma and Pete -- courtesy of Flickr! user DaylandS:

Notice anything, hmmm, familiar about young Nigel? 

It is difficult to miss that his jumpsuit and his ziggurat-emulating head gear -- indeed, even his choice of fashionable eyewear -- resemble nothing so much as the ensembles commonly sported by the members of Akron, Ohio's gift to American music, Devo, two of whom are seen here courtesy of Flickr! user zioWoody:

Now, as you might suppose, those trademark Devo Energy Dome hats are, well, trademarked.  And copyrighted. 

And what do we do when we want to use someone else's trademarked and copyrighted work in a large scale product promotion? 

We ask and obtain permission, don't we?  We certainly do. 

Unless we are McDonald's. 

In which case, we can expect to find, as McDonald's has done, that the be-domed and bespectacled holders of the intellectual property rights in question will make a speedy transition from jumpsuits to lawsuits:

Devo bassist Gerald Casale -- who designed the trademarked energy dome headgear-- is quoted as saying, 'This New Wave Nigel doll that they've created is just a complete Devo rip-off and the red hat is exactly the red hat that I designed, and it's copyrighted and trademarked.  We're in the midst of suing them . . . they didn't ask us anything.  Plus, we don't like McDonald's, and we don't like "American Idol", so we're doubly offended.'

None of the available reports sees fit to give more details of the litigation, such as identifying the court in which it has been filed, so I am unable to give you further details on the allegations or procedural status of the case.  Since making the statement quoted above, however, it seems that Gerry Casale, Mark Mothersbaugh and company have been directed by the Court to withhold comment until the case reaches its conclusion.

In the meantime, if you want a "New Wave Nigel" to call your own, there are still a handful of the figures available on eBay -- although in light of the latest $61M judgment Louis Vuitton obtained against eBay for serving as a conduit for counterfeit goods, who knows how long that will last?  (Of course, these aren't counterfeit fake Devo figures, they're real fake Devo figures.  So the cases are clearly distinguishable, are they not?  Discuss.)

Perhaps inspired by this litigation, Mark Mothersbaugh has created a limited edition image entitled "Devo and the Docket."  Only six signed and numbered originals exist.  Slightly more numerous but still limited (edition size < 100) is the genuine "Devo and the Docket" t-shirt.  It's what all the most nouvelle vague IP lawyers will be sporting this summer.

~~~

For further study:

• View Devo performing "Uncontrollable Urge" in both jumpsuited and Energy-Domed versions.

• So far as I can determine, Soulful Selma's geodesic hairstyle has not yet triggered an infringement action by the R. Buckminster Fuller estate.