Beyoncé’s Crazy in Love with Red Lobster?
Did you make a reservation for Valentine’s Day? Surprised that you couldn’t get one at Red Lobster? I suspect the seafood chain has seen a spike in their business over the past few weeks as the Beyoncé effect sets in. I kid you not — their sales on Valentine’s Day were actually 33 per cent higher than those on the same day in 2015.
If you are uninterested in football, and if you do not have cable TV — both of which apply to me — you may not know who won this year’s Super Bowl. (It was the Denver Broncos — you can now sound like you are in the loop if people are still talking about it.) Though I may not have immediately known the outcome of the game, I can assure you that I was very much aware of Beyoncé’s new video, upcoming tour, and Super Bowl performance thanks to Facebook and the greater internet community. One line in particular from her new song received a lot of attention online; it even inspired a hashtag on Twitter (#lobsterworthy). This line from “Formation” is about how Ms. Knowles sometimes treats her lover to a meal at Red Lobster.
“there is a chance that Red Lobster was not completely happy with their wholesome family restaurant image being associated with a blatant reference to sex.”
Now, as a lover of lobster especially when accompanied with melted butter, I definitely understand the draw to Red Lobster. I would be absolutely thrilled to have dinner there any night of the week. Take hint friends and family! Though I was left wondering what would happen if Red Lobster did not believe that Beyoncé had exactly slayed in endorsing their restaurant chain in her new video or Ms. Knowles had not gotten permission from Red Lobster to use their name in her song. Could Red Lobster sue Beyoncé for trademark infringement?
Though it may be hard for some to imagine being upset by a shout-out from Beyoncé, there is a chance that Red Lobster was not completely happy with their wholesome family restaurant image being associated with a blatant reference to sex. The restaurant did take eight hours, an eternity in today’s fast-paced social media run world, to craft a family friendly reply to Bey’s lyric by making a joke about cheese biscuits.
The leading American case on the use of trademarks in song lyrics is Mattel v. MCA Records, 296 F. 3d 894 (9th cir. 2002), regarding Aqua’s song, “Barbie Girl”. Just like in “Formation” where Beyoncé is directly referring to the Red Lobster restaurant chain, Aqua was clearly referring to Mattel’s Barbie dolls in their 1997 hit. Mattel was unsuccessful in their lawsuit, despite bringing the case all the way to the U.S. Supreme Court.
Though this area of the law is complex, it seems that the courts try their best to protect the public’s right to use trademarked material while engaging in non-commercial expressions like criticism and commentary. In the Mattel case, U.S. courts found that the song was a parody and therefore MCA was not liable in trademark infringement or dilution. Beyoncé could likely make an argument that her reference to Red Lobster was only in parody. Additionally, the trademarked Red Lobster name was not the subject of Bey’s song—unlike in “Barbie Girl”. However, the line between non-commercial expression and trying to sell goods or services can get blurry when it is obvious that mentioning brands that are as well-known as Barbie or Red Lobster seizes consumers’ attention.
If Beyoncé’s song is not found to be a parody, I think that she would be able to build a strong alternative defence. For example, she could argue that an ordinary listener of her song would not be confused about the creator of the song due to the Red Lobster reference, since no one has ever heard or expected to hear a song written, produced or performed by Red Lobster. Beyoncé could also argue that she was not “passing-off” her work as that of Red Lobster’s, since Beyoncé was not pretending that her song was a Red Lobster creation to get “Formation” on top charts. It also seems unlikely that an association to Beyoncé would damage the goodwill or reputation of Red Lobster, since based on the public’s excitement over her song’s release it is obvious that Beyoncé is a well-respected performer.
After a quick review of the law in this area, it seems like Red Lobster would not have much success in bringing a lawsuit over Formation, so Beyoncé and her man should be able to continue enjoying their lobster in peace.
Jaymie Maddox (2L) is a contributor to Juris Diction.