A “Rick and Morty” themed pop-up bar, located at the “Wubba Lubba Dub PUB” in D.C., was forced to close down merely one day after opening because negotiations with Turner Broadcasting and Cartoon Network fell through. Drink Company, the entity behind the pop-up, announced intentions to execute this “schwifty” experience without first seeking permission or a license from the network. The pop-up was planned to run from August 9 until October 6 but experienced a one week delay in opening due to hopeful negotiations with Turner Broadcasting. In the weeks prior to the bar opening, an attorney for Drink Company describes settlement negotiations as cordial and covering the usual type of issues, including agreements about placing disclaimers distinguishing the parties and indemnification by Drink Company should a guest become injured in the bar and choose to sue Turner Broadcasting. Then, according to Drink Company, Turner Broadcasting “changed their minds.” The Monday before the bar was set to open, Turner sent a new counteroffer, which, for the first time, included a six-figure licensing fee and requested Drink Company cut down the length of the pop-up by one month.
The cartoon follows the misadventures of alcoholic mad-scientist Rick and his grandson Morty as they travel throughout the multiverse, through space and time. As a tribute to the cartoon, the bar featured decorations and imagery from the show, including wall paintings and hand-sewn plush figures of characters. Even more, the space included life-size recreations of Rick’s garage laboratory and the spaceship used by Rick and Morty in their adventures. Costumes were welcomed and encouraged and the pop-up even included a special entrance for any guests who dressed up as Rick. Specialty themed drinks included aptly-named beverages such as the “Existence if Pain,” “Get Schwifty,” “Pirates of the Pancreas,” “Morty’s Mind Blower,” “Pickle Rick,” “Sleepy Gary,” “Peace Among Worlds,” “Keep Summer Safe,” and “Plumbus.”
Turner Broadcasting based its position on trademark infringement, trademark dilution, copyright infringement, and unfair competition. In particular, Turner was concerned consumers may be confused into believing the network was responsible for the “Rick and Morty” themed pop-up bar. Trademark infringement takes place when there exists a likelihood of confusion as to the source, sponsorship, or approval of goods or services. Similarly, copyright infringement occurs when an accused work is substantially similar to the original expression of the work and is analyzed under the audience test, which would find copyright infringement whenever an ordinary observer would immediately detect the similarities between the two works, without any aid or suggestion from others. Moreover, Turner claimed it worried the experience would not be up to the standards set for Rick and Morty fans, whom the network did not want to disappoint.
On the other hand, Drink Company asserted its pop-up experience qualified as fair use. Fair use is a permitted defense where any copying of copyrighted material is done for a limited or transformative purpose. In essence, fair use includes commentary, criticism, and parody, and provides for the unlicensed citation or incorporation of copyrighted material in another’s work. Drink Company claimed that consumers would recognize the “Wubba Lubba Dub PUB” as a fan tribute and would not be confused into believing Cartoon Network was starting a pop-up bar.
This is not the first time a bar has opened or proposed to open a fan-centric bar pop-up experience that has faced copyright issues. Last September, Netflix issued a playful cease and desist letter to “The Upside Down,” a Chicago-based bar themed to the hit series, Stranger Things. In that case, the streaming giant permitted the pop-up to remain open but requested it not extend beyond its planned six-week run and further that the bar request permission if ever attempting another bar inspired by Netflix intellectual property. Another example was “The Dark Side” bar, which celebrated the release of “The Last Jedi” and launched in Hollywood, New York, and D.C. last November. Finally, “Enter Wakanda” unofficially celebrated “Black Panther” with a throne room inspired by the film, paintings of characters, and cocktails named things like “Vibranium” and “Heart of Wakanda.”
This is not even the first time a “Rick and Morty” inspired bar has opened. In January, an arcade bar in Chicago, Replay, opened a similar experience decorated with fan art of the characters and offered a thematic cocktail menu. Replay had similarly been contacted by Turner Broadcasting but had received permission to operate its pop-up in an unofficial capacity for a truncated period of time. Moreover, the “Wubba Lubba Dub PUB” pop-up space is home to previous fan-centered experiences by Drink Company, including tributes to Christmas, cherry blossoms, and even the royal wedding. Indeed, Drink Company gained initial fame for its prior operation of a Game of Thrones-themed pop-up in the same space. Despite this turn of events, Drink Company has stated it will not be dismayed in future themed pop-up pursuits. Rather, it claims to have learned a valuable lesson: “when it comes to free speech and fair use, Turner Broadcasting/Cartoon Network believes that should only be a joke on the show.”