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BMG sues over pooping unicorn rework of Black Eyed Peas hit My Humps

By | Published on Monday 23 January 2023

Black Eyed Peas

BMG has sued toy maker MGA Entertainment in the US over its past marketing of a slime-making product line called Poopsie Slime Surprise with a song called ‘My Poops’, which sounds rather like the Black Eyed Peas track ‘My Humps. But with more poop.

The Poopsie Slime Surprise product line was first launched in 2018 and – a lawsuit filed by BMG last week explains – “included a number of different toys, including, but not limited to, a dancing unicorn doll and a unicorn doll that excretes sparkling slime”.

As for musical element to the dancing pooping toy unicorns, MGA “created a song called ‘My Poops’ that clearly copies from, and is substantially similar to, ‘My Humps'” and also made an animated video in which cartoon versions of the toy are seen “singing and dancing to the infringing work”.

And it doesn’t stop there. “Defendant also incorporated the infringing work into its physical dancing unicorn toys”, the lawsuit continues. “The dancing unicorn toys start to play and dance to a copy of the infringing work when a heart-shaped bellybutton on the front of the toy is pressed”.

Plus, “as a key marketing component for its Poopsie Slime Surprise product line, defendant also placed a sticker on the packaging of the dancing unicorn toy specifically directing consumers to ‘dance to’ the ‘My Poops’ song and infringing video on YouTube”.

BMG then reminds the court that music, “especially a hit song such as ‘My Humps’, adds great value when incorporated into a product or used in a video advertisement, because it increases consumer recognisability, consumer engagement and attention to the product. This results in greater consumer recognition of the product, brand and company, and leads to an increase in sales, revenue, and overall commercial gain”.

“The infringing work is so substantially similar to ‘My Humps’ that it is obvious that the infringing work was intentionally copied from ‘My Humps'”, the lawsuit continues, “and was created to commercially exploit the popularity of, and goodwill associated with, ‘My Humps’ and the Black Eyed Peas in order to sell more products”.

And yet, MGA did not secure any licence or permission from BMG to rework and use the Black Eyed Peas song in that way. The music firm controls 75% of the original song, the lawsuit confirms.

“Defendant’s intent to copy ‘My Humps’ is further evidenced by the fact that it chose a lead vocalist to sing the infringing work who sounds very similar to the Black Eyed Peas member, professionally known as Fergie, who is prominently featured in the original sound recording of ‘My Humps'”, the lawsuit also notes.

“The vocalist singing the infringing work uses a similar delivery and vocal inflections as used by Fergie on the original sound recording”.

With all that in mind BMG would like an injunction preventing the future use of ‘My Poops’ or any other poop, slime or unicorn based rework of ‘My Humps’, as well as some lovely damages “not readily ascertainable but believed to be in excess of ten million dollars”.

MGA will presumably claim that its rework of ‘My Humps’ was ‘fair use’ on the basis ‘My Poops’ was a parody of the Black Eyed Peas hit. Which, if the case gets to court, will require plenty of discussion on whether a poop-centric rework sung by slime-pooping unicorns qualifies as a parody under US copyright law in such a way that the rework did not require the permission of the original writers or their publishers.

It will be interesting to see how that goes, and how easy it is – or not – for BMG to fight back against any fair use claims.

Easier, maybe, than backing up another statement the music firm makes in its lawsuit that “the Black Eyed Peas are arguably the most popular and recognised pop musical group in the past thirty years and are beloved by millions of people around the world”. Though, fortunately for BMG, its infringement case doesn’t swing at all on assessing whether or not that assessment of the Black Eyed Peas is also a load of poop.