It turns out that Dumb Starbucks, the mysterious coffeeshop that opened in a Los Feliz strip mall this weekend, was in fact a hilarious prank by comedy central show-haver Nathan Fielder. Here we use “hilarious” in its strict sense, to mean “funnier than an LA Times headline, I guess.” Basically, Fielder opened a coffee store that was almost identical to Starbucks except A) all the drinks were free, B) the word “dumb” appeared in front of them—dumb iced coffee, dumb frappuccino, et cetera, and C) it wasn’t inspected by the health department. LA County shut down Dumb Starbucks for item (C), but I’m more interested in what the parody store says about fair use.
Just to resolve any swirling questions, Starbucks has explained that it is not affiliated with Dumb Starbucks. That article also includes a quote from a man who waited an hour in line at Dumb Starbucks, as well as this cultural analysis from 24 year-old Ilya Khramtsou:
It’s a ballsy move on their part. It feels like they’re sticking it to the company. Everybody drinks Starbucks coffee like zombies.
I guess it kind of feels like that, to the extent that calling a popular chain restaurant “dumb” kind of satirizes it. Khramtsou’s praise is pretty much Starbucks’s critique in a different tone: all Dumb Starbucks did was copy an existing, recognizable brand/business model and put “dumb” in front of it. Fielder says that’s parody and therefore constitutes fair use under copyright law. Starbucks says that Dumb Starbucks “cannot use our name,” but they seem unlikely to sue because they are not crazy idiots.
It seems we have two sweaty, aggressive questions with which to grapple:
- Does Dumb Starbucks constitute fair use under American copyright law? I promise not to talk about this very long.
- How funny does something have to be to count as parody?
Fair use doctrine was incorporated into the Copyright Act of 1976 to provide for scholarship, criticism, news reporting, comment (thanks, Congress!) and parody. There are obviously a lot of gray areas between those endeavors and outright ripoffs, so the law offers us four factors to consider.
One of them is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” which puts Dumb Starbucks in dutch. Fielder’s parody pretty much used the whole thing—logos, decor, menu, operational model—and added “dumb.” It’s like saying my bootleg copies of “12 Years a Slave” are parodies because I crossed out “Slave” and wrote “Fart” on the cover.
But then Dumb Starbucks seems safe again because of consideration four—”the effect of the use upon the potential market for or value of the copyrighted work”—and consideration one: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Dumb Starbucks gave away its drinks for free, and Fielder did not directly make money from it. It would be hard to argue that it degraded the value of Starbucks’s brand, either. For legal purposes, it appears that Dumb Starbucks is a parody.
For aesthetic purposes, however, Fielder’s parody is disappointing in the extreme. We’ve touched on this notion in a previous post, but there must be some theoretical minimum of humor value beneath which a parody ceases to be parody. The “12 Years a Fart” example sinks below that threshold, but it’s in some ways orthogonal because its obvious purpose is to make money. Fielder and Comedy Central pursued the obvious purpose of getting people to watch their show, but I think reasonable people can agree that Dumb Starbucks was a performance more than a product. If it was a moneymaking venture, it ventured to make money by a demonstration of comic skill.
But how much comic skill does Fielder demonstrate by putting “dumb” in front of Starbucks to suggest that Starbucks is dumb? Here we may be willfully missing the point: Fielder is not trying to be funny by pointing out that Starbucks is dumb, but rather by executing with great attention to detail a dumb comic idea.
This particular kind of funny is in keeping with the aesthetic of the producers of Fielder’s Comedy Central show, Tim Heidecker and Eric Wareheim of Tim and Eric Awesome Show, Great Job!. I’m going to alienate a large portion of my readership by saying that I dislike Tim and Eric Awesome Show, which tends to substitute awkwardness for humor and then try to cajole a laugh via commitment. That approach, I submit, is the funniest thing about Dumb Starbucks.
Like “satire,” the word “parody” dignifies Dumb Starbucks with a form. Fielder is working within a venerated comic tradition, it suggests, so he doesn’t have to actually make us laugh. I disagree. Dumb Starbucks was baffling, but that’s not the same as funny. It was a publicity stunt rather than a small business, but that doesn’t make it parody. I’m all for fair use, but it’s also fair to ask an artist to work a little harder.