Intellectual Property

Band Whose Lawyer Made Them Change Name Of Song So They Wouldn’t Get Sued Faces Entirely Different Lawsuit – Over Copyright Infringement of Llama Puppets

Will Fall Out Boy come to a settlement agreement with Furry Puppet Studio?

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(Photo by John Lamparski/Getty Images)

Fall Out Boy, a rock band whose heyday lasted from 2001 to 2009, before getting back together in 2013, is facing a copyright lawsuit over puppets. Specifically, larger-than-life llama puppets. Which brings me to today’s column, because I can never resist a good puppet/muppet intellectual property case (see: Sesame Street Loses Trademark Lawsuit Over “Happytime Murders” to Mpupet Lawyer, Fred, Esq.).

While some of the facts may be in dispute at this stage, according to the complaint filed by the creators of the puppets, two giant llamas were used in Fall Out Boy’s 2017 music video, “Young and Menace.” The Furry Puppet Studio asserts that they created the puppets and licensed the llamas for use only for the single music video.

These strange puppets somehow took on a “life of their own” when Fall Out Boy discovered their popularity, using them consistently in concerts and various media appearances, as well as merchandising for the band. Fall Out Boy gave the two llamas the names Frosty and Royal Tea. After releasing a seven-track album, Mania, in 2018, the band also released demo tracks that had been scrapped from Mania. The three-track extended play (EP) was released under the pseudonym Frosty and the Nightmare Making Machine and entitled Llamania. The complaint claims, “The widespread uses of the llamas puppets (which Rubrik had specified were being provided for a specific music video) are so far beyond the scope of the initial project that it would require omniscient clairvoyance from Plaintiff to anticipate that Defendants would for example, make and sell derivative works as merchandise, use the puppets to brand the band, became the face of the tour, use in numerous other videos, create a musical album, and create a social media app.” Furry Puppet Studio alleges copyright infringement as well as breach of contract, among other causes of action.

What’s interesting about the complaint is that the plaintiffs repeatedly assert that Fall Out Boy was licensed only to use the puppets in the “Young and Menace” music video, but not for any uses beyond. However, it doesn’t appear from the complaint that the license was in any way memorialized in writing. The plaintiffs repeatedly refer to an “implied limited non-exclusive license” and the 133-page complaint (which includes a number of exhibits) does not include the license agreement.

Given that Fall Out Boy has claimed joint authorship (which the Furry Puppet Studio refutes), it would seem safe to assume that exclusive transfer of rights to the band certainly did not occur. Otherwise, the case would be disposed of quickly, with Fall Out Boy (or Rubrik, who worked on the music video) brandishing their written transfer of copyright, which is required for an exclusive transfer. Without a written agreement, nor would the work be considered a “work made for hire” under copyright law.

However, it is unclear what non-exclusive agreement Fall Out Boy and Furry Puppet Studio may have come to. While plaintiffs allege only an “implied” and “limited” license, it would appear that the parties never memorialized their agreement. Based on the complaint, it appears that Rubrik told Furry Puppet Studio they wanted monster-like costume puppets, Furry Puppet Studio delivered two llama monsters, these puppets were used in the “Young and Menace” music video, and subsequently became extremely popular and used in a variety of ways by Fall Out Boy. What the parties’ intent was, however, would likely need further discovery. While the complaint includes several attached exhibits, including an email exchange between the plaintiffs and defendants regarding possible repair of the existing llama puppets or creation of duplicates, it does not include any conversations regarding the commission of the puppets. It will be interesting to see if the defendants provide such records.

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Finally, the complaint alleges that when Fall Out Boy requested repair of the original puppets or creation of duplicates, Furry Puppet Studio expressly noted that they were for the video shoot only and not for purposes beyond the music video. However, the actual email exchange is a little more ambiguous. Representatives from Fall Out Boy indeed request duplicates, but Furry Puppet Studio’s estimated timeline does not meet their tour deadline. Fall Out Boy then requests repairs, and Furry Puppet Studio obliges in providing the names of individuals in New York City who may be able to repair the puppets. Furry Puppet Studio also notes that the puppets were not made to withstand the demands of a tour, and suggests that duplicates would be more appropriate than repair. In essence, Furry Puppet Studio raises only durability issues, rather than copyright or licensing issues. In a follow up email, Furry Puppet Studio once again notes that the costumes were not built to last on tour and that it could raise safety issues for those wearing the costume. Thus, these emails may not support Furry Puppet Studio’s suggestion that follow-up emails made clear the puppets were only for use in the music video.

Of course, there is also a difference between the actual puppets that were made for the videos (and whatever licensing issues are associated with it) and the derivative works included in all the merchandising. Even if Fall Out Boy can establish that they’re acting within the scope of their license in bringing the llama puppets on stage and having the puppets do interviews, the band will still face questions regarding the emojis, shirts, and other merchandise which are emblazoned with renderings of the puppets.

How will Fall Out Boy respond to the lawsuit? Don’t forget, Fall Out Boy isn’t a stranger to potential litigation — remember back in 2005, one of the tracks on its sophomore album, Under the Cork Tree, was titled, “Our Lawyer Made Us Change The Name of This Song So We Wouldn’t Get Sued.” While I initially thought it was a crazy made-up title (that actually seemed to fall in line with Fall Out Boy’s track naming generally), it turns out their lawyer really did warn them against the initially conceived title (“My Name Is David Ruffin and These Are the Temptations”). Will Fall Out Boy come to a settlement agreement with Furry Puppet Studio or find some humorous way out when they renamed the song on their 2005 album?

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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