BMG Settles With Toymaker Over Parody Song Used To Sell Pooping Unicorn Toys

Back in February, a copyright case that somehow made it past me, but embedded below, was filed by BMG against MGA Entertainment over a song the latter used for one of its toys. That song was called My Poops" and is a parody of The Blackeyed Peas' My Humps." You can go hear the song, which MGA used in advertising for the toy, in the link above. There are similarities, yes, because this is a parody song.

Parody that could have fallen under fair use protections, had the suit concluded at trial. Sadly, this is yet another one of these copyright suits that ends not with any clear results on the question of parody protections, but instead in a confidential settlement.

U.S. District Judge Edgardo Ramosterminatedthe case in an order published on Tuesday after the two sides told him that they had resolved the dispute.

Terms of the settlement were not available, and representatives for the companies did not immediately respond to requests for comment and more information on Wednesday.

Now, the initial suit demanded $10 million in damages be paid to BMG, so you have to imagine the settlement wasn't for that high amount. Whether any money changed hands is unclear, of course, but I don't think it should have. Yes, the toy dances to My Poops" when you press a button on it. Yes, the company put out a music video featuring the song as an advertisement for the toys. But the factors for a use being covered by fair use are:

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

The purpose of the use in this case was parody. It was turning the hit song into something ridiculous, lampooning it all the more so by taking a genuine pop song and turning it into a song about, well, pooping unicorns. The nature of the original work is indeed a creative one, so there's that. The parody song in question, on the other hand, was something like 30 seconds, representing a small percentage of the total runtime of the original work. As to the fourth factor, well, I'd love to hear anyone argue that My Poops" somehow has a negative impact on the potential market for the band's 2005 song My Humps."

But we'll never get to see the outcome had MGA tried a fair use defense. And that's crappy.