It's a musical week in the blogosphere.
Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page). Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise." Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube and their website, fakelaugh.com, along with some blog commentary. You've got to hear and see this one to believe it:
A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages. The complaint, filed Friday, August 24, includes counts for defamation, business and product disparagement, and federal trademark infringement and dilution. It alleges that "Produce Paradise" depicts the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."
The complaint cites the brothers' "disparaging and disgusting lyrics pertaining to produce and groceries, and the store in general" and their "doing various disparaging and disgusting things to produce and groceries, and [sic] in and around the produce and grocery areas." None of the statements identified in the complaint, however, mention A&P. To support its claim that the video has injured its reputation, A&P alleges that "at least one customer," having recognized the store and Mark and Matthew as employees, complained to A&P about the video, stating that she was "disgusted and distressed by the scenes depicted in the video," and that she "would not be shopping in [A&P's] stores in the future owing to the repulsive acts depicted and performed by defendants in the Rap Video."
A&P also raises a trademark infringement and dilution claim, alleging (remarkably) that Mark and Matthew are "using the A&P logo in commerce, in connection with the promotion of their Rap Video" and that this use of its mark "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of defendants with A&P, such that a viewer of the Rap Video would surmise that A&P condoned, or sponsored or approved the use of the A&P Logo and/or the Califon A&P premises in the Rap Video." Somewhat (but only marginally) more realistically, the complaint claims that the defendants' use of the A&P logo dilutes the value of the mark.
I've watched the video (quite a few times). True, "Double D" and "Razor Blade" (the brothers' stage monikers) do some borderline-lewd things with fruits and vegetables, and at one point Double D (or is it Razor Blade?) appears to be urinating on some parsley. But I fail to see the connection to A&P, and I can't identify any potentially defamatory statements about A&P. It's impossible to tell that the video was shot inside an A&P store, unless you've been in that particular store (and even then I'm not so sure). Certainly, part of the humor of the video is that it was shot in the store, but the point is much more "look, it's a grocery store" rather than "look, it's an A&P." The brothers don't mention A&P by name or prominently display the A&P trademark. Their comments on fakelaugh.com match the visually observable facts:
The movie was filmed during a late night with no customers present. We were suspended with no questions asked, for all they knew we could have replicated the scene of a grocery store in a studio somewhere. The A&P claims that the company logo was all over the fliers we used in the video, a topic that was brought up in the union meeting. Too bad they were Shop-Rite fliers we used. He [a company representative] further went on to say that the Rap was about the A&P when in fact lyrically we make no mention to [sic] the company. In fact, the only thing that has the company logo in the entire video is my hat, which is seen blurry for roughly 20 seconds.
There are some provocative statements in the lyrics:
- Chorus: "Produce, produce, what you see is what you get, except for the cut fruit, and that's some nasty shit" (with a shot of an altered supermarket circular (no logo) with the caption "Fresh Cut Fruit 'Nasty Shit'").
- Fake Customer: "Excuse me sir, where did this grow?" Razor Blade: "Bitch, Do I look Mexican? I don't know."
- Double D: "I got the worst cold, because my rhymes are sick, I open and close packages just for a lick."
Now, there might be some understandably offended people out there (and probably many who would agree about cut fruit). But none of this has anything to do with A&P. And, in any event, the whole video is so farcical that no reasonable person could ever interpret it as making factual statements about A & P or the quality of its products.
As for the trademark claim, it seems to me that the brothers should consider a motion for sanctions against A&P under Rule 1:4-8 of the Rules of New Jersey Practice pertaining to frivolous litigation. The brothers are in not offering a product or service using the A&P mark (I couldn't even identify it in the video), and there is simply no way that anyone viewing the video could get confused about whether or not A&P sponsored or approved (much less was the source of) the video. Furthermore, even assuming that the brothers' use dilutes the value of the A&P mark, it is almost certainly non-commercial (their website doesn't even have advertisements) and probably a parody, and thus statutorily exempt from liability. See 15 U.S.C. Sec. 1125(c)(3)(A)(ii) and (C).