Beastie Boys Want You To Teach Your Daughters To Be Engineers But Not Thieves Like GoldieBlox
Last week I went crazy for the GoldieBlox video set to the tune of the Beastie Boys‘ song ‘Girls.’ Â What I didn’t know was that the company didn’t have permission from the band to use the song. Â Now the two sides are in an all out brawl about it.
The Beastie Boys are notorious for not allowing use of their songs in advertisements (which came to light in Adam Yauch‘s will) and they aren’t taking GoldieBlox use of their song lightly. Which is a pretty even match to the passion GoldieBlox feels about their work product because they filed a preemptive suit to get a court to declare their video parody.
The U.S. Copyright law protects authors of creative work from being used, copied or stolen without permission or payment. Â An important limitation to this exclusive right is the concept of fair use. Â The Beastie Boys allege their work was copied without their permission. Â GoldieBlox is claiming that their use of the song Girls falls within the concept of fair use as a parody of the less-than-flattering-to-women song, and therefore doesn’t require the Boys’ consent. Â So are they stealing or are they mocking? Â This is the question.
Fair use is a complicated concept that has evolved in the courts across the country since the Copyright Act of 1976. Section 107 sets out the statutory guidelines:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall includeâ€”
(1)Â the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)Â the nature of the copyrighted work;
(3)Â the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)Â the effect of the use upon the potential market for or value of the copyrighted work.
I did comment in my original post that the GoldieBlox video didn’t feel like an advertisement because they didn’t show the girls playing with their products nor did they have their logo plastered all over everything. Â But perhaps I’ve just become too jaded to what an ad really is since every episode of American Idol feels like a two hour Coke commercial to me. Â My opinion aside, GoldieBlox is going to assert that the girl power video was intended to educate young women and their parents — imploring them to find exposure to a spectrum of toys and activities, not to sell GoldieBlox in particular.
Any incidental commercial gain may possibly be ignored by the court. Â The Second Circuit review ofÂ American Geophysical Union v. Texaco Inc.Â suggested that “many, if not most, secondary uses seek at least some measure of commercial gain from their use.” Â Other courts have invalidated educational use as fair use, so it’s not just about profit alone.
WhenÂ Tom ForsytheÂ appropriatedÂ BarbieÂ dolls for his photography project “Food Chain Barbie” (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like),Â MattelÂ lost its claims of copyright and trademark infringement against him because his work effectivelyÂ parodiesÂ Barbie and the values she represents.Â WhenÂ Jeff KoonsÂ tried to justify his appropriation of Art Rogers’ photograph “Puppies” in his sculpture “String of Puppies” with the same parody defense, he lost because his work was not presented as a parody of Rogers’ photograph in particular, but of society at large, which was deemed insufficiently justificatory. (emphasis added)
Set to the tune ofÂ Girls but with anew recording of theÂ music and newÂ lyrics, girls areÂ heard singing an anthem celebrating theirÂ Â broadÂ set ofÂ capabilitiesâ€”exactlyÂ theÂ oppositeÂ ofÂ theÂ message ofÂ theÂ original.Â TheyÂ areÂ also shown engaging inÂ activities far beyond what the Beastie Boys song would permit.Â GoldieBlox created itsÂ parody video specifically to comment onÂ the Beastie Boys song, andÂ to further the companyâ€™s goal toÂ break down gender stereotypes andÂ to encourage young girls toÂ engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.
I’m not an expert in copyright law but it looks like there are decent arguments on both sides. Â At this point both parties are saying as little as possible, but it’s clear they are both settled in for a serious fight. Â I’m in the front row with my popcorn — I can’t wait to see what happens.