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Devo Sues McDonald’s; New Wave Nigel Under Fire

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In perhaps the most bizarre music story of 2008 to date, New Wave band Devo is suing greasy French fries, quasi-chicken nuggets, and mysterious meat substance McRib purveyor McDonald’s over alleged unauthorized use of the band’s likeness in a Happy Meal toy. The band claims that “New Wave Nigel,” which besides sporting an American Idol logo is also clad in a costume strangely similar to the one the band immortalized in the “Whip It” video, is little more than a mass-produced ripoff of the Devo image.

First, the easy part: that damn toy undeniably looks conspicuously similar to Devo. Anyone who’s even remotely aware of either the band or its most famous video (kids: back in the old days, MTV played videos and not just America’s Next Top Model on an endless loop) would agree. Nigel’s truly styling in both a jumpsuit and flowerpot hat; it’s likely not a coincidence that his wardrobe looks so similar to Devo’s. Either McDonald’s Marketing and Legal departments are musical Neanderthals devoid of even the most basic knowledge of music history, or they simply chose to take their chances with the toy anyway. Hell, Nike tried a similar approach with Minor Threat.

And while it’s likely that the Happy Meal chowhounds of today won’t associate Devo with the toy, it’s quite possible that said chowhounds’ parents (or grandparents, har har) will.

Devo is currently riding the artistic integrity highway in explaining its legal action. Bassist Gerald Casale, credited with creating the band’s unique look, is quoted as saying that McDonald’s “didn’t ask us anything. Plus, we don’t like McDonalds’, and we don’t like American Idol, so we’re doubly offended.”

Nevertheless, it’s somewhat difficult to accept this assertion at face value. Despite its carefully crafted image as a band that mocked and criticized commercialism, Devo hasn’t shied away from using its image or music in commercials. The band appeared in a 1984 ad for Honda scooters, and later recorded a new version of “Whip It” for Swiffer television commercials (though Casale has since stated the band regrets that decision). Clearly, Devo won’t ever be confused with Tom Waits regarding their views on licensing their songs (or themselves) for commercial use.  With this history in mind, Casale’s comment that McDonald’s “didn’t ask us anything” is curious. Those cynics among us could interpret that to mean that Devo might have approved the idea, had they been asked and, it can be inferred, been given a cut of that sweet Big Mac baksheesh.

So why continue with the lawsuit? Sure McDonald’s is guilty of either unimaginable, ignorant stupidity at best or shameless, blatant thievery at worst. Devo’s always operated with a twisted and wry sense of humor; they should get creative and devise a partnership with McDonald’s. Besides, there are many similarities between Devo and McDonald’s that are too striking to ignore:

  • Devo has crafted an other-worldly image throughout their career. Similarly, anyone biting into a McGriddle will certainly agree that those ingredients are not of this world.
  • The musical output of Devo and the less-than-gourmet output of McDonald’s don’t age particularly well. A bad Devo song is basically the musical version of a day-old Quarter Pounder: hopelessly dated beyond repair, possibly toxic, and likely to send you scurrying to the bathroom.

Devo can parlay this Happy Meal brouhaha to their advantage by introducing themselves to a new generation of music and fast food consumers. A whole line of new toys could document every phase of the band’s career. McDonald’s cups could be shaped into the band’s famous flowerpot hats. And, oh yeah, I’ll take my McDevo with cheese.

About EDW

  • http://www.morethings.com/log Al Barger

    Devo was marginally interesting for about 30 seconds, but this lawsuit business is just greedy de-evolutionary bullshit. Found a picture of New Wave Nigel. They apparently think that any kind of image that looks even vaguely partly like any kind of fashion statement they had 30 years ago is verbotten.

    But hey, fashions are not copyrightable in the first place, are they? So McDonald’s has some American Idol toy that has a character wearing something resembling the flower pot hat. Wah!

    I wish McDonald’s would countersue, and make Devo pay their lawyers fees and court costs for this utter stupidity.

  • eve

    2 years late with the comment here, but I still want to say something.

    First of all, I’m going to ignore the mean-spirited teasing going on in page 2. Whether the author likes DEVO or not doesn’t matter after all.

    Also, I have to disagree with Al here. The hat does not “vaguely” resemble the “flower pots” that they wore, it is EXACTLY the same. The fact and the matter is that DEVO put effort into designing the hats, as well as into every other visual and musical aspect of their act. DEVO is not just a rock band; it’s an art project, a concept. Therefore, using the hats without permission is the same as using a song without permission. Except that if it was the song, the record company would be pissed, and the record company likely doesn’t care about the hat, so the band is kind of on its own there…

    DEVO might have “sold out” to Swiffer or Honda back in the day, but that’s irrelevant to the situation explained there. McDonald’s did NOT ask their permission to use one of the most recognizable elements of their image. I think DEVO has a legitimate right to sue McDonald’s. We can make whatever we want out of the fact that they are “selling out”, but they should get to choose who they want to license their songs or images to, if they decide to go down that route.

  • Jay

    1) The hat is a trademarked part of Devo’s presentation. Hence, unauthorized use is a violation of TM.

    2) Somehow the fact that Devo’s licensed material before means that they should just let folks run around and use their trademarks however they choose? I don’t see the logic here. Are they after a part of the profits? Hell yes! And they’re entitled to them!

    Let me put this in a manner most folks will get: “Hey, can I borrow your car tomorrow like I have in the past, old friend?” Sure – why not? How about this: “Can I borrow your car tomorrow to rob a bank and hide a body?” What? You mean you might have a problem with that? Why? You’ve loaned me the car before. It’s the same thing, right? No. Furthermore, at the end of the day it’s your car, it’s your call.