Sunday Morning Hot Tea - No. 31
The Right to Live Shamelessly and 2AM Grape Juice (TM)
Welcome to Sunday Morning Hot Tea where I write about a little something up top then answer a legal question for you down below. This week, the real freedom of Real Housewives. Plus, did Biggie owe Welch’s for that shout out?
In this edition:
Topic of the Week – Real Madness
Legal Question – Name Dropping Grape Juice
The Most Shameless Women This Country’s Ever Seen
I’ve been watching a lot of Real Housewives of Beverly Hills recently. I never really liked reality shows before. I only started watching because we were covering the Erika Jayne/Tom Girardi scandal on Sinisterhood.
This is only for work, I told myself when I pressed play. I don’t like these shows. I am not the type of person who likes these shows. I’m better than those people.
What a fool I was.
After two episodes, I found myself talking back to the screen. I would grab Paris’s arm as he zoned out beside me.
“Can you believe she said that?” I asked.
He could not believe it, mostly because he wasn’t paying much attention and wasn’t invested in the storyline.
Eventually, I caught up on the most current season. Then Christie and I finished our two episodes on Tom and Erika. Time to stop, right?
Wrong. I didn’t stop. I couldn’t.
I went back and started from the beginning: Real Housewives of Beverly Hills, season one, episode one. This show is now at eleven seasons, with over two-hundred episodes total. At forty-five minutes per episode, that is a 150+ hour time commitment I’ve just signed up for.
It’s ok, I’m ready.
In addition to Real Housewives, I have been knee-deep in videos of televangelist Gwen Shamblin-Lara. She ran a strict religious sect that ticks a lot of boxes that make it sound like a cult. The “diet” she peddled was basically an eating disorder in a WWJD bracelet.
There are some connections to draw between Gwen and the Housewives – decadent homes, gross displays of wealth, lots of make-up, tall hair. For all their overlap, though, I categorize the two separately.
For one, the Housewives don’t bring religion into it. Though, some people may say Bravo is a religion, and Andy Cohen is the messiah. But it’s TV. You can turn it off at any time. They’re not asking for money or donations. They’re not selling anything, except their ancillary products, but honestly who is running out to buy Kyle Richards’s newest emoji muumuu?
Though not as harmful as a cult, there is criticism of the Real Housewives shows. One critic wrote that the show “sets unattainable expectations of what is desired of a woman” and that it “subliminally hints to citizens nationwide that this is the average standard of living.”
Uhhhh... agree to disagree. At no point while watching any of Beverly Hills have I ever thought, Gee, I am a terrible woman because I don’t have lip implants or a Bentley or a flat stomach. In fact, I relish in not having those things, imagining the toll it takes to get and maintain them. Me? In a Bentley? I once backed a rental car straight into an electric pole in an otherwise empty parking lot in broad daylight. Not a great plan to put me behind the wheel of a $380,000 car.
I’d also like to give myself and the other people who watch these shows some credit. We’re not completely detached from reality. We know those expectations are for famous TV people and not for us, or at least I do. I am watching to satiate my curiosity about what it would be like to have those things.
As for it “hinting'“ to us that the TV lifestyles are “the average standard of living nationwide”? Nah. I, for one, understand that my standard of living is quite different than the standard of living for Kelsey Grammer and his ex-wife, Camille. All of their many houses were bought with Frasier money. I do not have Frasier money. None of us do. Not even Kelsey Grammer anymore after he cheated on Camille without a pre-nup and got that flight attendant pregnant. Oops!
But the key word is “average” and is right there in the critic’s sentence. Average people don’t create hit sitcoms. Average people don’t have houses all over the world. Average people don’t have four nannies for two kids. In fact, I watch these people precisely because they’re not average. If I wanted to see average people fighting with each other, I’d go to the Golden Corral buffet in my hometown on a Sunday morning after church when they set out the fresh mac ‘n cheese.
This desire to peer over the fence doesn’t involve just any fence. We want to peer over a nicer fence into a fancier yard. This is why shows like Jerry Springer are no longer popular. Average people are boring – we’re average! So who gives a shit if any of us are quarreling with our neighbors? It’s much more interesting if people are fighting in a 17,000 square foot house with dramatic chandeliers and an enormous backyard.
Just like I don’t yearn to live in the monkey habitat at the zoo, I don’t wish to attain those things I see on television. Frankly, their whole lifestyle seems exhausting. In the pre-COVID episodes, I was floored at the amount of precious time they all spent air-kissing each other on the cheeks. With the hours wasted fake-smooching every human being who entered a scene, they each could have painted the entire Vanderpump mansion once-over or learned to play the harp or actually played tennis on their superfluous tennis courts.
If it’s not aspirational, then, why do we watch? We’re nosey, plain and simple. At least I am. We also like to eavesdrop, even when those talking know we’re there on the other side of the camera. We also like peeping through windows into giant-ass houses, and this offers us a way to do that without being charged with a felony. It’s the same reason why browsing Zillow is a form of pornography. It’s easy to blow hours breezing through images of fabulous mansions and judge the heinous décor they’ve chosen. Doesn’t matter whether it’s on an app or on my television screen.
The show also speaks to that penchant for schadenfreude that we all harbor to some extent. The higher someone is the farther they fall. The current legal situation with Erika Jayne from the more recent seasons is a perfect example. What does it say about us who have watched her extravagant lifestyle, now knowing the money that paid for that lifestyle may not have been hers all along? It may have belonged to widows and orphans and people who have sustained serious, life-long injuries and extreme pain. Now that we see her losing everything, a part of us – the part that thinks she maybe knew what was going on and is helping cover it up – thinks, Serves you right.
Critics be damned, I also like Real Housewives because I like seeing powerful women do whatever the hell they want. Lisa Vanderpump wants to set a photo of herself and her little alopecia-afflicted Pomeranian, Giggy (RIP!) as her iPad background?
Being an eccentric with her money is Lisa Vanderpump’s right – it’s all of their rights.
In Season 11, Dorit dresses like she got trapped in a Louis Vuitton fabric factory and sewed her way out.
Ok, girl, do it!
I get a strange feeling watching these earlier episodes of Beverly Hills. Shot between 2011 and 2013, I am watching these women, some of whom are only marginally wealthy, spend like mad and behave erratically, and it’s all caught on camera.
Meanwhile in 2008, only a few short years earlier, we all watched Britney Spears do similar things, and we labeled her crazy. We let her get essentially locked up – yeah, we. All of us. Now we’re all responsible for getting her out and letting her live whatever decadent life of retirement she wants.
What was it that flipped in our perception of women in those years between 2008 and 2011? One guest who appeared on season two of Beverly Hills told the cast that she spent $25,000 on a fairly plain-looking pair of sunglasses, and no one locked her up. I can guarantee she doesn’t have near as much dough as Britney, either. A cast member named Taylor dropped $60,000 on her daughter’s fourth birthday party. No conservatorship there.
There are ten franchises of this show, the first of which began airing in 2006. Throughout them all, the women behave wildly – crying, screaming, blowing sums of money, even struggling with mental health issues and substance use issues – but none of them were placed in restrictive legal arrangements. None of them were treated like Britney.
Was it because they weren’t as powerful? Weren’t as well known? Did we think they were only behaving that way because they were on camera? In some cases, we know they were genuinely struggling. Erika’s legal issues sure are real, as were Kim Richards’s substance use issues and Taylor Armstrong’s struggle to break free of an abusive marriage.
But, when a powerful woman like Britney Spears dared behave as if she were “mad,” her dad stepped in and subjected her to a structure that ACLU attorneys call “civil death.” Isn’t it the God-given right of each and every one of to behave a little mad from time to time? Isn’t that how we learn our lessons – through trial and error?
Where was August Coppola when his baby boy, Nicholas Cage, dared blow his $150 million fortune like a James Bond villain? He bought an actual live crocodile, a shark, a haunted mansion, a grave, and a really old and extremely expensive comic book, among other things. Where was David O’Russell’s dad when he blew up on camera, kicking a trash can across the room and calling Lily Tomlin a c-u-next-Tuesday? Or when Christian Bale flipped shit on a whole production crew?
These behaviors were wild, eccentric, and smoothed over with a simple apology. If unpredictable outbursts are a sign of an underlying condition necessitating that someone must be totally controlled, where were these dudes’ parents with their court orders?
You may be asking, But wait, Heather, doesn’t Britney Spears have some sort of mental disorder that requires her to be constantly monitored? Great question – yes, she does have a diagnosed disorder, but it’s not something that requires her to be stripped of all her rights. She has openly discussed having bipolar disorder, a diagnosis she shares with Tim Burton and Francis Ford Coppola, both of whom don’t have their dads controlling their bank accounts or reproductive organs. [For more information, please allow me to recommend several hours of Sinisterhood that cover her diagnosis and the conservatorship in general (1, 2, 3, 4).]
Christie brought up an excellent point in our most recent #FreeBritney update episode. When a woman dares behave outside the norm or live and struggle openly with a mental health diagnosis, the conclusion is often to control her and revoke her rights.
She drew a parallel to the treatment of women back in 1864, when women were admitted to the Trans-Allegheny Lunatic Asylum at such a rapid rate that the institution quickly filled up. Some of their afflictions? “Domestic trouble, seduction, egotism, indigestion, menstrual derangement, childbirth, laziness, reading too many novels, masturbation, and desertion of husband.” These acts of defiance were treated as mental conditions that required them to be controlled into submission, via medication, being locked up, lobotomies, or worse.
We see those same acts of defiance in the women of Real Housewives who go on television and live their lives of “domestic trouble, seduction, egotism, indigestion,” etc., acts that would have landed them in an asylum not so long ago.
So if women are no longer being locked up for out-of-bounds behavior, are we in a post-feminism society? Hardly. Another critic actually posited that “The Real Housewives portrays and promotes a discourse in which women have become their own oppressors.”
Hard disagree. In part because, yes, I will continue watching. I need to know whether Adrienne and Lisa can repair their friendship after Lisa didn’t invite Adrienne to the Villa Blanca anniversary party! (No spoilers, I’m only on season three.)
But mostly I disagree because criticism like that is our real oppressor. Real Housewives gives women a space to act outside the boundaries established for us by society (i.e., the patriarchy), and for those of us watching, we get a chance to celebrate that.
Feminist writer, professor, and social commentator Roxane Gay would agree with me. She told Messiah Andy Cohen that Real Housewives “allow women to be their truest selves. We see the mess, we see their amazing friendships and everything in between. When women are allowed to be their fullest selves, that's the most feminist thing we can do.”
Women should behave, we’re all told. Hell no! Being ostentatious and outrageous and mad with no one to lock us up or stop us is the raddest move we can make. For fifteen years, eighty-six women across ten franchises have defied expectations and behaved with reckless abandon, while we’ve let Britney languish in captivity for daring to suffer in public. It’s why #FreeBritney is no fad, but instead stands for a responsibility we have to let women live lives of freedom – including the freedom to be irrational and make mistakes without allowing theirs daddies to step in and take away their autonomy.
So let’s all scream, cry, get wine drunk, fight, make up, fly private to Maui, and blow $25,000 on some ugly as hell sunnies. Let’s fight for other women’s rights to do the same. It may sound scandalous to you, but hey, at least we’re not blowing $300,000 to outbid Leonardo DiCaprio on a dinosaur skull. That behavior would just be irrational.
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Song Inspiration: This week, I listened to the last great american dynasty by Taylor Swift while writing this. There goes the maddest woman this town has ever seen // She had a marvelous time ruining everything.
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QUESTIONS FROM YOU – The Cost of Naming Your Juice
This week’s question is from Aaron via the form. Aaron asks:
In the song “Big Poppa” Notorious BIG attempts to entice a girl to rendezvous with his crew at the bar around 2 with an offer of “cheese, eggs and Welch’s grape.” Did he have to pay Welch’s for the use of their brand in his lyrics? Do music artists fall under the same rules as movies and tv about product usage?
Great question, Aaron!
I’ll start off by saying the following is a simplified explanation of use of trademarks. I love them, but intellectual property attorneys rank up there with tax attorneys in the “UM ACTUALLY” camp of lawyers. They can’t help it, they’re specialists! Think of me as your local primary care physician and think of IP lawyers as brain surgeons. Their area of law is incredibly intricate, which, naturally, leads them to hang their hat on technicalities. It’s why we love them and why we pay them the big bucks to watch our artistic backs.
So here’s the quick and dirty on using brands in songs.
Two laws govern the use of trademarks in media – the Lanham Act and the Federal Trademark Dilution Act (FTDA). The Lanham Act protects trademark holders from, among other things, trademark infringement, trademark dilution, and false advertising. The FTDA creates a way to sue in federal court to protect famous marks from unauthorized use; to prevent others from trading upon the goodwill and established renown of such marks; and to prevent dilution of the distinctive quality of such marks.
The purpose of both of these laws is to protect the commercial use of words and symbols. The law that runs counter to those laws is a big one – the First Amendment. Since the government “shall make no law …abridging the freedom of speech,” courts have been hesitant to bar speech simply because it mentions the name of a brand.
The test courts use to balance the protections of the Lanham Act against the free speech guaranteed by the First Amendment was originally created in a lawsuit from Ginger Rogers, the famous movie star and dancer. It’s now known as the Rogers test.
The Rogers test poses two questions to determine whether the Lanham Act wins when it is pitted against the First Amendment. The first question is whether the offending work’s use of a trademark has some artistic relationship to the work. The second question is whether that use explicitly misleads consumers.
In Rogers, the Second Circuit Court of Appeals held that the Lanham Act “should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.” The court refused to ban someone from using a name or brand in a work simply because it was protected by a trademark. The use had to ALSO be confusing to consumers in order for the court to bar the speech.
The Ninth Circuit adopted this standard in its ruling on that one-hit-wonderful song “Barbie Girl”.
In the Barbie Girl case, the use of the trademark “Barbie” did not “explicitly mislead as to the source of the work” and did not “explicitly or otherwise, suggest that it was produced by Mattel.” That was enough for Mattel to lose at an early stage of litigation – because the use of the trademark in the song did not mislead a listener as to the source of the work or suggest it was produced by the owner of the trademarked item. Nobody heard that song and thought Mattel wrote it or sang it.
The Barbie Girl decision also applied the other law, the FTDA. One of the exemptions to the FTDA that allows someone to use a trademark is non-commercial use. But that begs the question — Is using a trademark in a song commercial or non-commercial? A song like “Barbie Girl” is art (just barely), created to express Aqua’s feelings on Barbie. But it’s also a product that’s being sold – back then, via CD singles at the local Sam Goody.
The court determined that when a song’s commercial purpose is “inextricably entwined expressive elements,” the song should be allowed to enjoy full First Amendment protection. Since the creative expression of Aqua singing about being undressed anywhere existed alongside the purpose of selling records, the Ninth Circuit held that the song “Barbie Girl” was not purely commercial speech. Therefore, Mattel lost and couldn’t prevent the monstrosity of “Barbie Girl” from continuing its onslaught against our ears.
The Rogers test was recently applied to protect video game maker Activision Blizzard when it used AM General’s Humvee military vehicle in its Call of Duty video game. Is using a trademarked car in a video game commercial or non-commercial?
Because the Humvees were there to make the gameplay more realistic, the court concluded that was “artistic expression” sufficient to satisfy the first question in the Rogers test.
As to the second question, the court held that the Humvee was not “explicitly misleading” and also, even if it was a little bit misleading, “an artistically relevant use will outweigh a moderate risk of confusion where the contested user offers a ‘persuasive explanation.’” Activision Blizzard explained their use of the Humvees persuasively: Humvees are the kind of vehicles that the real military uses, so they chose to use those vehicles to be as realistic as possible.
Despite these lawsuits, many brands actually like being mentioned in hit songs. Taylor Swift frequently name drops brands in her songs, including Polaroid and Band-Aid, which benefits the brands and sometimes leads to partnerships.
When Katy Perry released “Harleys in Hawaii” she did not inform Harley-Davidson of the song’s title in advance. Still, the company relished the opportunity to access a younger generation of riders and even provided motorcycles for us in the music video. The real illegal action in this song is that it wasn’t a bigger success. That song fuckin’ SLAPS!
There are really two ways for an artist to get in trouble by mentioning a brand in their songs. The first, as we discussed above, is mentioning a product in a way that would confuse consumers that the brand was responsible for the song.
The second way is mentioning a brand or product in a bad light. For instance, I would not recommend writing a song called Taco Bell Gives Everyone Diarrhea Every Single Time They Eat There. Just like people can sue for untrue statements about them that cause harm, corporations can also sue for defamation. Taco Bell would have to show that the published material has caused or is likely to cause financial losses. That may be a stretch given that Taco Bell = diarrhea is a meme. Doesn’t mean they couldn’t still try.
This is why a banger like “Combination Pizza Hut and Taco Bell” can exist in all its glory. It is not making a negative statement about the conjunctive restaurant chains, and no one would be confused into thinking that YUM! Brands wrote or sang that song.
Since Biggie mentioned using Welch’s grape juice as a way to seduce women to rendezvous with him in the middle of the night, we can assume this is a positive mention as he believes it to be a delicious pairing with his T-bone steak and cheese eggs. Is it “cheese (COMMA) eggs”? Like, is he eating a T-bone steak, cheese, AND eggs, then pairing it all with Welch’s grape juice? Or is he eating a T-bone steak and eggs MIXED WITH cheese to pair with the Welch’s? The world may never know.
But at no point would anyone think that Welch’s grape juice wrote that song. Just listen to it. Only Biggie could come up with such effusive lyrics and such dope beats.
I hope that answers your question, Aaron!
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
Until next week, that’s the tea, and you can find me at the combination Pizza Hut and Taco Bell.
PS - Happy birthday to the love of my life and most amazing man ever born, Paris! ❤️
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