Sued by Starbucks

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A long read, but interesting

Sued by the Siren, Part 1
Confessions of a Frap-addict
by Kieron Dwyer They say you never forget your first. While I don’t remember when my frap hymen was lost to one of Starbucks’ delicious mocha Frappuccinos®, I certainly won’t forget the last one I’ll ever have. It was Saturday, April 29, 2000: the day Starbucks sued me.

The bike messenger who handed me that seven-pound stack of legal documents was apologetic. He said he thought what I was doing was hilarious and walked away with shoulders hunched. A dark job, indeed, to be the bearer of such troubling news. Did he recognize me as a kindred spirit, someone else from the lower rungs of this ever-increasingly corporate, money-driven society, or was he just permanently hunched from heaving such wasteful cargo on a daily basis?

I had never waded through hundreds of pages of rambling legalese before. Much of it was nearly indecipherable. A few things were glaringly clear, though: without so much as a simple cease-and-desist letter, Starbucks was suing me for copyright and trademark infringement, as well as damages and a recoup of their legal fees for filing the case. Reflecting on my financial situation, it was hard not to laugh at the last bit, and equally hard not to cry. Had I woken up that morning in Bizarro World, where up is down, good is bad, and rich is poor? No, it was just another day in Corporate America: wake up and smell the lawsuits!
I wasn’t entirely surprised by this action from Starbucks Corp. When I conceived my parody of the Starbucks logo more than a year before and put it on some T-shirts, I knew there was some risk of legal action but wasn’t overly concerned. However, knowing it was the image I wanted for the cover of my comic book, LCD: Kieron Dwyer’s Lowest Comic Denominator, I decided to consult a lawyer about the copyright/trademark issues involved. Through a referral from California Lawyers for the Arts, a national nonprofit organization with regional branches in nearly every state, I was put into contact with Andrew Gold of the San Francisco/Bay-Area firm Bogatin, Corman & Gold.

When Andy saw the image, he laughed. It was the usual reaction to my parody, which clearly pokes fun at Starbucks as well as consumerism in general. My logo is also a sly dig at the person wearing the shirt, acknowledging their own complicity in the capitalist food-chain. It’s true humor, drawn from a tragic sense of hopelessness in the face of something sad and inevitable -- i.e., the planetary destruction wrought by this unstoppable consuming machine that is the human race.

Starbucks is an immense player in this destruction. The process of creating coffee, especially on the scale demanded by our 24-7, Internet-driven economy, is incredibly destructive to the planet, from the growing and reaping process straight to the largely unrecyclable waste on the consumer end. After a Starbucks opened in my own neighborhood, I noticed a marked increase in the trash I saw (and continue to see) on the streets near my home. I would estimate a good 80% of this trash to be Starbucks cups and such. With their icon emblazoned on everything they make, it’s not a difficult thing to notice.
It was this sudden proliferation of trash, as well as my own weekly--sometimes daily(!)--excursions to the siren’s chocolatey, Frappuccino-bearing bosom, that initally prompted me to concoct my parody logo and the slogan “Consumer Whore.” (The slogan is a mental slip from the words “consume more now,” ultimately inspiring me to add the phrase “Buy More Now” to the final design.)

At that time, I knew very little about copyright technicalities and such, but I was sure that I had to make appreciable changes in virually every aspect of the logo to make it distinct from the original. Ironically, it still had to retain enough of the original to have the intended impact. Given the phrase “Consumer Whore” on which the parody was to be based, it was clear that the siren herself needed to be the focal point. I altered her in nearly any way I could think of: specifically, I gave her face a more dazed and gape-mouthed expression than the placid mermaid, adding nipples and a navel ring to suggest a blow-up doll or typical bimbo; I gave her arms in place of fins, and in those arms I placed a coffee cup and a cell phone (commenting on the typical high-speed clientele at virtually every Starbucks I’d ever been in); finally, I added jewels to her crown and replaced all the stars from the original with dollar signs, thereby clarifying--if there was any doubt--her “princess” status and her primary preoccupation (as well as that of Starbucks corporate management, presumably).
I proudly displayed my finished logo on my nascent web site, which was sorely in need of some dynamic visuals. A friend suggested the addition of red blinking nipples, and the rest, as they say, was history. Or soon to be, perhaps.

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My initial meeting with lawyer Andy Gold was comforting. I was aware of the potential for trouble from Starbucks, which had shown little regard for small businesses in its own domain. Still, it seemed like a long shot that they would sue someone like myself, someone clearly doing a humorous magazine and related merchandise, and on such a small, very limited scale -- infinitesimal, really, by contrast with Starbucks. Andy confirmed this opinion and suggested that their first reaction to me would most certainly be a cease-and-desist letter. Should I ignore or defy such a warning, their response would very likely be legal action. Bolstered by this interaction, I decided to go to print and self-published 2,000 copies of the first full-sized LCD with the parody logo adorning its cover.
While I would qualify the debut of my comic as successful and personally rewarding, it’s pretty hard to set the world on fire with a mere 2,000 copies of anything, let alone a comic book in the current depressed marketplace. Frankly, I thought I was safe in the relative obscurity of the comics world, until the dark day of April 29.

Having received the legal papers on a Saturday morning, it wasn’t possible for me to contact a lawyer until first thing Monday (coincidence?), and a response was required by close of business Wednesday (hmmmm . . .). Fortunately, Andy was available to meet with me early Monday, at which point I gave him copies of the fat legal stack. He was shocked at the nature of the case, saying it was “the most aggressive action” Starbucks could have taken under the circumstances. I didn’t know whether to be flattered or scared. We both agreed that it would be in my best interest to be a millionaire, thereby enabling an adequate defense against the java juggernaut. Unfortunately, I was about a million bucks short.

Undaunted by the clear financial advantage of my new “suitor,” I resolved not to settle the case, at least until we had an initial hearing. To his credit, Andy was willing to represent me pro bono for a limited amount of time, and I set about looking for some deeper pockets to assist me in what seemed to be a very clear First-Amendment case. I put in a call to the local chapter of the ACLU, where a woman was very dismissive without taking any time to hear the specifics. Disheartened, I called Chris Oarr, Executive Director of the Comic Book Legal Defense Fund (CBLDF). Chris was familiar with LCD, and we had both anticipated the Fund’s eventual involvement on my behalf in some capacity -- most likely an obscenity case -- but this was not the circumstance we’d been expecting. After speaking with Chris and the Fund’s legal counsel, Burton Joseph, Andy officially petitioned the CBLDF for financial assistance in my case.

May 26, 2000 was the initial hearing date for Starbucks v. Dwyer, Case no. C 00 1499 MMC. U.S. District Judge Maxine Chesney ruled in my favor on the copyright- and trademark-infringement claims, indicating that she found my logo to be a clear parody (she even called it “pretty clever”) and refuting Starbucks’ contention that consumers were likely to be confused or deceived by it. She found in the coffee corp’s favor on the issue of trademark tarnishment or dilution, mostly because of the commercial use. Her final injunction order prohibits me from selling anything with the parody logo or using it to promote any other goods or services for sale.

The whole court experience was very odd. Everything reinforced the David vs. Goliath nature of the case. The handful of people present made the courtroom seem larger and more imposing, and the lawyer pleading Starbucks’ case was a very large, tall man who crowded Andy out of the podium area, even when the judge was not addressing him. This made Andy seem smaller and scrappier than he is. The in-house counsel for Starbucks was a very heavyset woman dressed entirely in lime green (“official corporate color?” I wondered). She contributed nothing to the case, but was allowed to sit in the “official” area, whereas I was confined to the gallery. Not being a “sit-on-my-thumbs” type, it was particularly hard not to be able to pipe up when I felt something was being overlooked or misrepresented. Andy did a great job, though, and I was pleased overall with the outcome, despite some disappointments.
As of this writing, the CBLDF’s board of directors has yet to commit to aiding in my defense. Andy Gold has thus far received no compensation for the hard work he’s done on the case. I have no regular income and can no longer sell my shirts, stickers, or the #0 issue of LCD. While not the cornerstone of my “empire,” the shirts and stuff brought in some spending money, now lost. The attention I get from the case waxes and wanes as the media chews up stories and spits them out. I continue to draw my comics and cast about for something reliable, workwise. Starbucks Corp. trucks along its merry little world-dominating way (the company’s stated goal is 20,000 retail outlets worldwide -- it currently has around 2,900) and presumably feels no impact from the negative press or its campaign of bad will. Their lawyers indicate that Starbucks is uninterested in settling the case based on the terms of the injunction order, calling the siren logo “the jewel in the company’s crown.” What this means is that, despite shutting down any profitability my parody had, Starbucks really wants it eradicated entirely. Can you say “GREEDY?” Can you spell “BOYCOTT?

The greatest irony here is that I was a frap-addict with very little will control. Any profits I might have made from the sale of my shirts and stuff already went back to Starbucks to feed my habit. While I don’t recommend it, getting sued was the surest and fastest way to kick it. I’ll never let another frosty Starbucks frap pass my lips, so I’m glad my last one was a good one. From now on, I’ll drink Dr. Pepper. Wouldn’t you like to be a Pepper, too, Consumer Whore?
Kieron Dwyer is an illustrator and satirist who has drawn everything from high-profile Superman comics to Ed McMahon taking a crap on an old woman’s bed.

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Sued by Starbucks, Concluded
The saga continues. And then ends.
by Kieron Dwyer Nearly a year after the saga began, my suit with Starbucks Corporation has been settled, and I’m feeling pretty deflated. For a while, I almost felt like a hero. It’s the image I wanted for myself, and the press did a fair job of painting me that way. It’s kind of a no-brainer when the opponents are so obviously ill-matched. Now the spotlights and microphones are mostly gone, the case is settled, and I am left to ponder what it all means.

First, some backstory for the uninitiated (also see “Sued by Starbucks,“ archived online at http://www.tmcm.com). More than two years ago, I created a parody of the Starbucks logo and threw it up on my fledgling humor web site, LCDcomic.com. My satire arose in response to a Starbucks opening in my own neighborhood. I quickly became hooked on their mocha Frappaccinos, always ordering the “venti“ (the largest size in Starbuckian). Shamefully, if they’d had a Big Gulp size, I would have gotten that, but my growing habit wasn’t the only down side to their local presence.
My neighborhood was now sullied by ever more trash bearing that tentacled temptress, the Starbucks “Siren.“ From the gutter she mocked me with her cold, blank eyes. Her heaving bosom and barely hidden nipples taunted me with promises of chocolatey, caffeinated goodness, so nearby—and only another four bucks! “You’re worth it,“ I heard her say again and again. I felt like a modern-day Argonaut, destined to be dashed on the rocks of my own greedy weakness. Feeling powerless against her, I did the only thing I was qualified to do: mock her right back.

The response to my design was so positive that I printed the image on the debut cover of my comic book LCD: Kieron Dwyer’s Lowest Comic Denominator. I also used it on T-shirts and stickers, which I sold and gave away. Profit wasn’t my primary goal; I was content to sell a few here and there to pay for the freebies. I was just happy to be spreading my message and connecting with other like-minded people.
Then I got sued.

No cease-and-desist letter, no diplomatic warning shot across the bow. On April 29, 2000, I was served with a huge lawsuit by Starbucks, and the battle was joined. I was terrified yet excited. I didn’t want this to be my life’s defining moment, but I didn’t want to back down. This was classic schoolyard bully stuff: David and Goliath, Evil Corporate Amerikkka versus private citizen, supervillain versus superhero.
Allow me to digress with some ruminations on the nature of the hero. It’s a rich subject, to be sure. Many of our legends and inspirational tales are chronicles of the hero’s journey, but what does it mean to be a hero? Having spent most of my life in the four-color world of comic book superheroes, I’d like to say I have a definitive answer, but I don’t. Professionally, I’ve drawn the adventures of Superman, Batman, Captain America, and many other enduring American icons of heroism—but what qualities make them heroes?

Although there are exceptions, most comic book heroes are largely defined by the enemies they fight. Whether superpowered or not, in the face of overwhelming, world-dominating evil, the costumed do-gooders have little choice but to oppose their villainous counterparts. As Stan Lee, via Spider-man, so eloquently put it: “With great power comes great responsibility.“ The folks at Starbucks (and the rest of corporate America, for that matter) seem to have their own spin on the phrase: “With great power comes great responsibility. . . to the shareholders.“

Another oft-quoted phrase also springs to mind: “The business of America is business.“ Truly, the Bottom Line is King in this country—if not the whole world. I suppose it’s always been so to some extent, but never more so than in these days of mega-mergers. A recent article in Adbusters magazine (archived on their site at http://www.adbusters.org) clued me in on the rise of corporations in human history. It’s frightening stuff. According to the article, everything changed in 1886, when the U.S. Supreme Court ruled on a railbed dispute titled Santa Clara County v. Southern Pacific Railroad. “The ruling held that a private corporation was a ‘natural person’ entitled to all the rights and privileges of a human being. It was one of the greatest blunders in legal history, and it triggered the corporations’ 100-year march to global power.“ (Adbusters #31, Aug./Sept. 2000.)

This ruling gave corporations the same rights as individual persons, which means, in effect, they have more rights than individuals. Most individuals don’t have the financial or manpower resources of a corporation, and therefore have far less protection against a company than vice-versa.

In my case, I certainly didn’t have the money to fight Starbucks on equal ground, so my options were to fight within my means for as long as I could, or lay down and let the bulldozer roll over me. It didn’t seem like much of a choice. Andy Gold, my lawyer, had worked largely for free. While he wanted to “take them to the mat,“ he was understandably unwilling to proceed indefinitely without more financial compensation. The Comic Book Legal Defense Fund (CBLDF) kindly pledged some financial assistance, but it covered only a fraction of Andy’s billable hours, and nobody else rose to the challenge. And despite their verbal support, some friends and acquaintances could still be found slinking into a Starbucks for their afternoon latté. Many felt compelled to confess these “slips“ to me. Instead of absolution, I admonished them that every dollar they spent at the Evil Empire was a dollar spent on crushing me and my kind like so many overpriced coffee beans.

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See, that’s the problem with the whole hero thing: no one takes it very seriously. Sure, everyone loves a heroic tale, but very few people want to actually take the hero’s journey. It’s a road fraught with peril. Unlike fairy tales, real life isn’t fair. Good people get hurt, and bad people win sometimes.
After the initial hearing in my case, Judge Maxine Chesney set the lawyers for both sides to the task of crafting a final injunction order, which she would then sign. From the get-go, the Starbucks team bullied us, pushing for more than the judge had indicated she would grant. They had virtually ignored the existence of my comic book through the hearing, then suddenly insisted it must be included in the items I am forbidden to sell. The judge evidently bought into their ploy. It’s obvious now that Starbucks used me to set an example. When a diplomatic approach could have sufficed, they came in with both barrels blazing. Their intent was to crush the little guy and maintain the Bottom Line.

After the injunction order was signed, settlement talks began. Again, Starbucks pushed for more than they were entitled to. At every turn, they sought to stifle the limited expression I had retained. I tried to comply with each new demand. First it was the use of the parody logo on my web site. They wanted it on its own page, so I coded my site to display the logo and accompanying info on my case in a separate browser window. This stand-alone page had no link back to the main site. Eventually, though, Starbucks claimed that to have the logo anywhere on my site was an inducement to buy other products for sale on the site, and thus violated the injunction. They insisted that the logo must be on its own separate site, with no connection to the LCD site at all and no links to or from the mysterious logo site that no one could find or know about. They were basically saying I could cut down as many forest trees as I liked, so long as no one could be there to hear. This thing now felt personal.

My girlfriend wondered if someone high up at Starbucks had really felt hurt by my swipe and wanted some form of vengeance. I laughed off her idea as feminine sympathizing, but now I’m not so sure. Is it possible that Starbucks has brainwashed its employees so heavily that they take such satire personally? This is a company that has packaged and sold a wholesome image of coffee-house comfort while taking advantage of small farmers worldwide and causing great harm to the environment—but suddenly they have feelings to hurt when a small-time cartoonist sells a couple of hundred T-shirts mocking them? An actual individual, a public figure like a politician who spends money to be elected to a job we pay for, has less of a right to his or her own likeness than a company’s nonliving, nonfeeling corporate icon. I can make fun of President George W. Bush and profit from distortions of his image as long as I like, but I cannot profit from a parody of a company that spends millions of dollars to burn its logo into our collective brains.

With limited financial resources (read: none), I was at a real crossroads. I couldn’t pay Andy Gold a cent, and the CBLDF’s money could only go so far. We finally met with representatives from Starbucks at a settlement conference in the offices of a magistrate judge. One of the key sticking points was the existence of a new logo, the “Copyright This!“ logo adorning the ass of the cover girl on another issue of LCD. Starbucks considered it another violation of the injunction order and wanted it included in that order. In our private meetings with the judge, she agreed that Starbucks was overreaching, but she clarified things for me. In essence, she confirmed that the legal system is tilted in favor of Starbucks and every company like it. They can and will tie you up in litigation as long as they want, she said, and maybe you’ll win in the end, but it will cost you a lot of time and money to find out. You may be right, but how much does it matter to you to be the fly in Starbucks’ ointment? Can you walk away from it?

It was an odd thing to hear from a judge—both refreshing and disturbing. In my heart I had always known it to be true, but it was powerful to hear it straight from the person charged with dispensing justice. We haggled for the better part of a day, until we arrived at something I was willing (if not happy) to sign. As a condition of the settlement, I can’t disclose any of its terms, but I can continue to take shots at the Java Juggernaut, so long as I carefully obey the letter of the law. As far as I’m concerned, it was Starbucks that made this personal, but I’m happy to return fire. My eyes have been opened by this experience, so while I’m disappointed that I didn’t defeat Starbucks, I’m actually glad to have made this journey. I’ve learned a lot about the the law and myself.

Despite Starbucks’ contentions and Judge Chesney’s opinions, I still believe it’s wrong to define the borders of free speech along commercial and noncommercial lines. In fact, one of the strongest precedents in First Amendment protection as it pertains to copyrights and trademarks is the case of 2 Live Crew. The band created a send-up of the Roy Orbison tune, “Oh! Pretty Woman,“ which contained sampled parts of the original song. The U.S. Supreme Court affirmed the band’s right to profit from the parody. And ask yourself why it was all right for a “fine“ artist like Andy Warhol to print countless lithos of Campbell's tomato-soup cans or for Roy Lichtenstein to “borrow“ art from published, copyrighted works and reap huge financial rewards. The message seems to be that if your work is printed on canvas or paper, it’s art, but on cotton fabric (i.e., a T-shirt), it’s simply commercial. Just don’t tell that to all the museums and stationers who’ve sold millions of posters and greeting cards reproducing artists’ work. Free speech, it seems, isn’t worth the paper it’s printed on.

To paraphrase a Benjamin Franklin quote, “The only use in money is the use of money.“ I suggest that the same holds true for speech. Free speech is not a card trick to be pulled out whenever there’s a lull in the party, nor is it a convenient shield to hold up whenever we knowingly say or do something harmful or wrong. It’s an everyday thing, a precious right to examine and expose our true selves. Every day that we make the choice to get up and put some piece of ourselves out in the world, we make a difference. A small one, sure. Immeasurable, perhaps—but it does add up. The human race advances not usually in giant leaps, but rather in a long string of innumerable small steps. So to some degree, we each walk in the shoes of heroes.