Feb 22, 2018
Sarah Ebel has one of the most interesting jobs at the Field Museum, but it's likely not one that would jump to mind if I asked you about exciting museum positions. She's an attorney, and in addition to helping us sort out copyright and licensing issues it's also her responsibility to do things like keep us up to date on federal wildlife trafficking laws, and, you know, figure out how to install a temporary sink for a tattoo parlor we built in an exhibition.
Today she's on the show to share a few stories. The first has to do with the time she was asked by the Fan Association of North America (fans of fans) to talk about how Obama's ban on the interstate trade of ivory was going to impact their hobby. It, uh. Didn't go so great.
Sarah’s Very Legal Response to our request to use the Hamburger Helper logo in a video for The Brain Scoop:
Subject: WATCH THE STOVE Fair Use Analysis
Hi, Emily and Sheheryar--
You asked me whether the use of a portion of one of the tracks from the Hamburger Helper Mixtape, "WATCH THE STOVE," and the Hamburger Helper glove mascot ("the Helping Hand" or "Lefty") in an upcoming episode of The Brain Scoop would constitute fair use under copyright and trademark law, respectively. In both cases, I think the answer is yes, it would be a fair use provided you are not making extensive use of either the mixtape or Lefty, but are using both as a brief gag satirizing the recent trend of suddenly dropped mixtapes and using HamburgerHelper as an example (which is the use you previously described to me). However, if you were using an extended clip from the mixtape or using it as background or credits music or using Lefty in a way that implied that Hamburger Helper sponsored or endorsed The Brain Scoop or The Field Museum, that would not be a fair use.
(That was the tl:dr answer; the legal rationale wall-of-text follows)
The mixtape is protected by copyright, and, as creative work is afforded a high degree of protection. Additionally, the use you propose does not alter the work, but it does use it in a satirical context. More importantly, you are proposing to use only a very small portion of the work (only enough to make your point) and this will have no negative impact on the original work or the market for it. In fact, seeing as Hamburger Helper released the mixtape for free as a marketing stunt, referring to it in The Brain Scoop might have a net positive effect on the market for the original by driving new listeners to the original mixtape. While this isn't a clear cut case of fair use (since satirical use is a tricky, often subjective, analysis), the fact that you're planning to use so little of the work (a brief clip from one track) which will have no recognizable impact on the market for the original.
The Hamburger Helper mascot is likely protected under trademark as it serves as a brand identifier. Trademark fair use is different from copyright fair use, in that fair use of a trademark is allowed when the trademark is needed to accurately identify the source of a product, the use is constrained to the amount required, and there is no implication made that the use constitute endorsement or sponsorship by the trademark holder. Again, the use you described would fall under fair use, as you are using Lefty only briefly to identify the source of the mixtape and not in away that implies Hamburger Helper's endorsement. While you could just use Hamburger Helper's word mark, rather than its mascot, Lefty is immediately recognizable, which is efficient for a visual medium, and Hamburger Helper purposefully associated Lefty with the mixtape; it seems difficult to refer to the mixtape without referring to Lefty.
If you have any other questions or if your planned use has drastically changed, let me know. But, otherwise, your mixtape gag passes legal muster (thanks for the fun question).
Where are you in the world? Give us a listen! Record 30-45 seconds of your environment and email it to us at exploreastory(at)fieldmuseum(dot)org, with the subject line: "OK to share- EAS." Please include your name & location in the recording! By sending us the file you're giving us permission to use it at the end of a future episode or another Brain Scoop-related project, so thank you in advance.
ExploreAStory is written and hosted by Emily Graslie, produced by Sheheryar Ahsan and Brandon Brungard, with music by Jason Weidner, and made with support from the Field Museum in Chicago, Illinois.