A federal judge rapped Miller Brewing Co., its ad agency and comedian Joe Piscopo by refusing to dismiss a copyright infringement suit against them brought by the "Fat Boys" singing group.
At issue is a nationally broadcast Miller Brewing television commercial featuring Piscopo backed by three Fat Boys look-alikes performing in the group's distinctive rap music style.The Fat Boys - Mar Morales, Darren Robinson and Damon Wimbley - said in their suit that Miller and its ad agency Backer & Spielvogel Inc. had asked them to appear in the commercial, but they refused.
The defendants then "publicly advertised for three fat black males to appear in a commercial," the suit said. The males in the commercial, excluding Piscopo, "bear a striking resemblance to and are look-alikes of each of the three `fat black males' constituting the Fat Boys," the suit said.
Other plaintiffs in the suit are Tin Pan Apple Inc., Sutra Records Inc. and Fools Prayer Music Inc., which own various copyrights to Fat Boys music.
They said in the suit that the Fat Boys have a "personae of overweight, young singers who create a melody for their songs by vocal sounds rather than instruments and who consistently appear before the public wearing square-studded eyeglasses, T-shirts, stripped sneakers, satin baseball jackets and large, gold name pendants around their necks."
The suit also said that among the messages the Fat Boys try to convey to youths through their music is "to avoid all use of drugs or alcohol."
U.S. District Judge Charles Haight said in his ruling: "It requires no effort to infer that, having been rebuffed by plaintiffs for such a commercial, defendants Miller and Backer proceeded to copy them.
"The finders of the fact could equate such conduct with bad faith and evasive motive on defendants' part," he said.
The defendants argued that the commercials are an "obvious parody of rap" constituting a "fair use which prevents a claim of copyright infringement."
But Haight cited a previous court decision that found that fair use is a valid defense only if the parody builds on the original and contributes something new for humorous effect or commentary.
He said there is also precedent that material cannot be considered a parody under law if it uses copyrighted material "solely for personal profit, unrelieved by any creative purpose."