If you thought the Beastie Boys’ tiff with GoldieBlox over the “Girls” parody used in their toy commercial was over when GoldieBlox dropped the song from the commercial and said they would drop their lawsuit (though as TechDirt points out, they technically, um, never actually did), better think again. GigaOm reports that the Beastie Boys have now filed suit against GoldieBlox, demanding it hand over profits gained from using the song without permission.
The Beastie Boys are more than a little emotionally involved, given that they say they are honoring the dying wish of deceased band member Adam Yauch that his music never be used commercially. And of course I’m not a lawyer. But it seems a bit dubious to me that they can succeed if they press this suit.
The Beasties are going up against a very strong precedent in a 1994 case that also involved a commercial (in the sense of making money, not as part of a TV commercial) parody of a popular music tune that that tune’s writers didn’t like. The case in question is Campbell v. Acuff-Rose Music, Inc., and it involved such disparate players as rockabilly legend Roy Orbison and foul-mouthed rap group 2 Live Crew.
2 Live Crew wanted to parody Roy Orbison’s “Oh, Pretty Woman.” They asked Acuff-Rose Music, the copyright owner of the song, for a license to use the tune, were turned down, but went ahead and did the song anyway. It sold a quarter of a million copies, and Acuff-Rose Music sued. The trial court threw the case out on summary judgment because it was a fair use parody. The appeals court reversed the judgment and remanded for a full trial because it failed the amount of use and commercial use portions of the four-factor fair use test. (We’re all becoming quite familiar with that test, given that it was also applied in the recent landmark Google Books decision.)
The case eventually made its way up to the Supreme Court, who ruled it was, in fact, a fair use, and that the four factors had to be looked at as part of a whole—you couldn’t just throw it out because it seemed to fail one or more while succeeding at the others. It noted commercial use was not necessarily a rejection of fair use in and of itself. It also noted that by their nature, parodies were entitled to take a bit more of a work than most fair uses could because that was how people would know what was being parodied, and that the parody generally wouldn’t harm the market for the original work because they serve different functions.
SCOTUS sent the case back down to the lower court for reconsideration on that basis, and the two parties eventually settled out of court. Reportedly, Acuff-Rose dropped the suit and 2 Live Crew licensed the tune. Regardless, Acuff-Rose v. 2 Live Crew set such a strong precedent for determining fair use that it has been one of the basic pillars supporting most fair use judgments since, including in the Google Books trial.
This ruling is also why parodists such as “Weird Al” Yankovic don’t have to ask permission to use songs they parody. It’s allowed under the same compulsory licensing that allows recording “straight” covers of music. (Of course, “Weird Al” asks permission anyway, because he believes in being polite, but he doesn’t have to. When a misunderstanding led to Al doing a parody of Coolio’s “Gangsta’s Paradise” without permission, apparently Coolio recognized that all he could really do was cash the royalty checks—there was never a lawsuit filed.
It should be interesting to see how this plays out in court. Will the Beastie Boys come to their senses and drop the case? Adam Yaunch’s dying wishes probably won’t make a whole lot of difference to the four-factor fair use test.