Much has been written on the proliferation of the so-called "clearance culture" and the threat that overly aggressive intellectual property enforcement poses to creativity. Last week brought news of the clearance culture's most recent victim: Spinal Tap.
It all started in 2007, when a 14 year old decided to pay homage to the Spinal Tap (cough) "classic" "Tonight I'm Gonna Rock You Tonight." Coleman Hickey created a video for the song using stop-action animation and Lego® figures.
Spinal Tap got word of Hickey's video, and decided to display it on stage during their recent "Unwigged and Unplugged" tour. Concertgoers even raised Lego-inspired "C" shaped hands during the performance.
Here's where things become decidedly less funny. Spinal Tap approached Lego to request permission to use Hickey's video in their commemorative tour DVD set. And Lego said "no." Why, do you ask? Because “it had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12.” (I'm sure it has nothing to do with recently announced plans to turn Legoland into a major motion picture.)
Hickey certainly wasn't the first person to see the artistic possibilities in the primary colored bricks. Lego art abounds on the Internet and has even been exhibited in art galleries. The hobby of making videos and short movies with Lego bricks is so popular that the films have been given their own name -- Brickfilms -- and have spawned a music video for a major label band. Some of the resulting creative output has even been decidedly NSFW, all without legal action by Lego.
Lego justified its stance by citing the "commercial" nature of the Spinal Tap video. But can Lego really prohibit the use of their products in commercial videos? If you ask the federal courts, the answer is likely "no." It's a lesson that Mattel has repeatedly had to learn the hard way.
But that hasn't stopped trademark and copyright owners from trying. The court summarily rejected Wham-O's claims against Paramount Pictures for the unflattering use of its Slip 'N Slide toy in the movie "Dickie Roberts: Former Child Star." Caterpillar likewise had its claims against Walt Disney (relating to the portrayal of the brand in the oh-so-popular movie "George of the Jungle 2") shot down. Similar claims by Emerson Electric Co. (makers of the In-Sink-Erator garbage disposal) and the Canadian folk band the Wyrd Sisters also failed to go anywhere.