‘My Poops’ Feud Tied to Black Eyed Peas Adds to Fair Use Chaos

The fate of a lawsuit claiming a song called “My Poops” rips off the Black Eyed Peas’ “My Humps” may hinge on pending US Supreme Court guidance on fair use questions that have long bedeviled courts and attorneys alike.

BMG Rights Management LLC’s complaint says a YouTube music video and a diaper-clad dancing unicorn toy incorporating its song—which opens “Whatchya gon’ do with all that poop”—rips off the 2005 Fergie and will.i.am rap duet.

On its surface, the case is close enough to divide attorneys. That suggests the high court’s imminent ruling in its first non-software fair use case since 1994—weighing an Andy Warhol rendition of a photo of Prince—could decisively tilt the outcome.

The case fits into a broad gray area between derivative and transformative, a distinction that can be as nuanced and controversial as it is crucial. MGA Entertainment Inc. will likely claim parody or transformative fair use in defense of the My Poops video and Poopsie dancing unicorn.

It largely comes down to whether the song is parodying “My Humps,” free-riding on its successful creative attributes to sell a product, or something in between, attorneys say.

“Is it really targeting something about the Black Eyed Peas song? Or is it just something funny that’s using the Black Eyed Peas song?” IP attorney Robert W. Clarida of Reitler Kailas & Rosenblatt LLP said. “The whole point of fair use and transformativeness is up in the air until the Supreme Court decides Warhol, because who knows what they’re going to do.”

The question has been in the air for a long time, IP law professor Sean O’Connor of George Mason University said. Even the Supreme Court’s 1994 ruling in Campbell v. Acuff-Rose Inc.—which deemed rap group 2 Live Crew’s “Pretty Woman” a transformative “parody” that was a fair use of Roy Orbison’s original—didn’t clearly define the boundaries of key terms.

“I don’t think anybody really has really good case law with language that says exactly what the line is between parody, satire, and homage,” O’Connor said. “If we don’t have that, we don’t have great guidance here.”

More Than a Joke

BMG’s complaint estimated that MGA has made tens of millions of dollars from its Poopsie Slime Surprise toy line, including a dancing unicorn toy that plays the offending YouTube music video’s song. BMG believes MGA owes it at least $10 million in damages from the infringement and forced association between “My Humps” and Poopsie Slime Surprise products.

MGA hasn’t responded to a request for comment.

Analysis of the first of four fair use factors—the nature of the work—includes whether the use is commercial and whether it transforms the “purpose and character” the original. Campbell introduced the transformativeness standard, which has been guidance for lower courts since—with varying results.

One question key to setting up first-factor analysis is whether the offending song is primarily an advertisement—or a standalone work or part of a product. Campbell explicitly said use “to advertise a product, even in a parody, will be entitled to less indulgence under the first factor.”

If the 102-second music video came before the toy used the song, it could be argued to be a stand-alone creative work rather than an ad for a product, O’Connor said. If the toy came first, however, the case could be made that the toy is a transformative work and advertising it with the video is at least as fair as the toy, attorneys said.

Even if the music video were an ad that came first, though, it’s not a lost cause. The US Court of Appeals for the Second Circuit in Leibovitz v. Paramount Pictures deemed a poster advertising the movie “Naked Gun 33⅓" fair use of a Vanity Fair cover photo of Demi Moore’s nude pregnant pose. Paramount superimposed actor Leslie Nielsen’s face onto a photo mimicking the cover image.

That 1998 opinion distinguished the poster’s apparent intent from merely making a joke. It said one could reasonably perceive it as ridiculing the pretentiousness or self-importance depicted in the cover. The court also noted a link with the movie, which includes comedy related to pregnancy and parenthood.

“The court there really kind of went out of its way to say the poster really did tie into the theme of the movie,” Clarida said.

Weird Precedent

Clarida and others compared the “My Poops” song to Weird Al Yankovic’s popular spoofs on famous songs. Yankovic secures permission for songs he draws from to be safe, though whether he legally needs to is unclear—and likely varies by song given the fact-specific nature of fair use, attorneys say.

The nature-of-the-work factor suggests that reasonable listener perceptions of the spoof need to be compared to the original to help determine whether purpose and character were transformed. The appeal of the works also would need to be considered.

“What caused someone to buy a Weird Al song?” copyright attorney Robyn Crowther of Steptoe & Johnson LLP said. “Are they buying it because it’s Weird Al? Because it’s a parody? Or because they liked the original?”

The transformative analysis has been unevenly applied, several attorneys said. Crowther pointed to a case where rock band Green Day convinced the Second Circuit in 2013 that transposing a cross over artwork used on stage sufficiently transformed it.

She said that struck her as much less transformative than what Shepard Fairey did to an Associated Press photo of former President Barack Obama to create his iconic “Hope” poster, which a judge ruled wasn’t fair use if it was later found infringing.

“The judges came at it way differently,” said Crowther, who represented Fairey’s company in the case. “I find it challenging to advise clients in advance whether something is going to be considered fair use or not, because it’s such a fact-based inquiry.”

Transformativeness itself isn’t a question with a binary answer, nor is it decisive, according to Campbell. The justices there didn’t decide the fair use question, but remanded it for reconsideration, saying they didn’t have enough evidence regarding the fourth factor—impact on the market for the original.

They instructed the circuit court to consider impact on a derivative market for non-parody rap versions of “Pretty Woman,” suggesting a work can be somewhat transformative but still not fair use. The case settled.

For “My Poops,” that implicates a question of whether there’s a specific licensing market for comedic non-parody derivative songs that Black Eyed Peas might reasonably exploit, and whether “My Poops” would impact it.

No Clear Answer

That brings it back to whether “My Poops” mocks “My Humps,” or just uses its notoriety and catchy hook to get attention. And attorneys don’t agree.

“It seems to me to be clearly a parody,” David Leichtman of Leichtman Law PLLC said, adding he’s not sure if it meets the strict definition of “parody.”

O’Connor said one could reasonably view “My Poops” as a shot at the “very sexualized” original. He said he didn’t see how its argument—or that of many Weird Al songs—would be much weaker than 2 Live Crew’s.

The justices said the rap song’s “degrading taunts, a bawdy demand for sex,” and other crude elements could be seen as commenting on the “naivete” of the original “romantic musings,” “a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”

“It’d be one thing if it’s a sexy song and similar to it, selling a product that is jewelry or something,” O’Connor said of “My Poops.” “It’s not clearly making fun of Black Eyed Peas. But back to Campbell itself, it’s not clear to me how the 2 Live Crew version is a parody of the first one.”

IP attorney Owen J. Sloane of Eisner LLP said he didn’t think “My Poops” really commented on “My Humps” while using it in a “purely commercial context,” though he acknowledged the legal landscape is “a minefield.”

“It’s not a very appealing case for fair use,” Sloane said. “But the area is so muddy, and there are so many cases in different directions.”

The case is BMG Rights Mgmt. (US) LLC v. MGA Entm’t Inc., S.D.N.Y., No. 23-465.