copyrightHere an interesting copyright story making the rounds this morning: GoldieBlox, a startup who makes engineering-themed toys for girls, has a new ad which has gone viral, featuring several cute little girls constructing a Rube Goldberg-esque machine to the tune of ‘Girls’ by the Beastie Boys. The lyrics of this iconic song have been re-written to accommodate the girl-power theme, and the instruments are a little punchier. But it is recognizably the Beastie Boys tune.

What followed was predictable—a polite inquiry from the Beastie Boys—and then unpredictable, as GoldieBlox sued them! They claim their unauthorized borrowing as fair use because it is a parody and thus a transformational use. They took the offensive so that they could get a ruling from the court that their use is permitted (I have read at least one other story on this which suggests they are trying to enter the ad into a contest where the prize is an ad spot during the Superbowl; they need the ad to be clear of any legal issues in order to do so).

There are a few issues here. As the Reuters article explains:

“In their letter to GoldieBlox, the Beasties make three simple points. They support the creativity of the video, and its message; they’re the defendants in this suit, rather than the people suing anybody; and, most importantly, they have a long-standing policy that no Beastie Boys songs shall ever be used in commercial advertisements.”

That last point is an important one: band member Adam Yauch had explicitly stated in his will that no music of his could ever be used in advertisements, and it sounds like the band is honouring that. If this was just a viral video to promote engineering for girls, maybe the band wouldn’t have an issue. But, however cute and clever it might be, it is at the end of the day an ad designed to sell a product. Should the band have a right to say no to that, even if the use is a ‘parody’ and transformational?

I have seen comments on this story which were fairly evenly split. Some felt that Yauch’s dying wish was sacrosanct; others felt that ‘fair use’ should not be stopped no matter who wanted it to be. What do you think?

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  1. This should fall. The use of a parody song depends upon the context in which it is used. In this case, its sole purpose is to sell the company’s product.

    This hearkens back to the original course case involving Mad magazine and (I believe) the Irving Berlin estate. While its use of song lyrics helps to sell the magazine, it was one small item among 60+ pages of material. The magazine also did not promote its use of the song. The parody’s commercial role is small.

    Not so with the commercial. As an audio companion to the visuals, it plays at least 50 percent of the commercial. But I would judge its role to be even higher — even 100%, since the ad would make no sense at all without the song.

    Plus, suing the Beastie Boys is a dick move by GoldieBlox.

  2. What the hell does this toy do? Why would it be called a construction toy? I haven’t seen a single creation that a child has made with this toy. It is all an advertising ploy being spent on a rather sexist (girls only) toy.

  3. good post, Joanna, and there is another issue here too, WHy did they choose a male man engingeer to do the Rube Goldberg machine? a woman writes online on this saying: [Deenavision] – ” It really would have been nice if the inventor of GoldieBlox had put her money where her mouth is, and hired women engineers to create this commercial. You know–BE the change you want to see! I love the idea behind this product, and perhaps she was on a tight deadline. But, this was a missed opportunity to HIRE female engineers, and showcase their creativity and talent. ….. I just hope that Debbie Sterling will consider hiring WOMEN ENGINEERS for her next ad. …. It just makes me sad to see ONLY MEN working on the production behind the scenes. Ms. Sterling missed a chance to make a profound statement. This product is a step in the right direction–encouraging and inspiring little girls to become engineers. Now, if we can only get the grown-ups to be REAL ROLE MODELS!”

  4. and – and the males who worked on the ”build” with brett doar in LA , again mostly MEN, re he says:
    ”I worked with them to create this Rube Goldberg Machine in October
    and November of 2013. The build took about 2.5 weeks, and I had a
    crew of 5, including male Paul Thompson, male Craig Simmons, [female ?]
    Robin Carpenter, male Eric Mesple, and ONE female Rebecca Thompson.

  5. The merits of the case, copyright vs fair use, are irrelevant.

    Whether GoldieBlox wins or looses the court case, their marketing campaign has ALREADY succeeded beyond their wildest dreams.

    I had never heard of GoldieBlox before this week, and never would have heard of them except for this controversy.

    How much would it have cost to buy the publicity they are now getting for free?

  6. Yes, the PR on this was priceless. I read the story in taiwan in the Intntl New York Times from Paris a wire story that went worldwide to over 1000 newspapers and websites via NYT News Service, and all free. WOW

  7. @Dan Bloom: Very interesting point about the commercial set having been built and designed by men. I didn’t even consider that, and I haven’t seen it mentioned in any of the many articles and blog posts about this case. Also worth considering is the previous video Debbie Sterling created, which also went (sort of) viral, and also parodied a popular song to make its point. It was for a non profit organization that allowed anyone to buy a goat for a poor rural family in India for just $20. The video’s soundtrack, “I Want a Goat,” was a riff on The Lonely Island’s “I’m On a Boat. Check it out on YouTube.

  8. Dan, thanks for note. Actually, quite a few people, male and female, commented on the engineer for the Rube Goldberg machine being a man, on the YouTube comments by other people i found quite a few saying same thing as I did, so i was not alone in this, people more perceptive than me spotted this with their radar right away. This entire thing is beginning to look more and more like an inside hit job, with the NYT Clair Cain Miller writing a big puff piece on this from her SF office and all the other VIP media people going along, from LA TIMES to everymedia. This Sterling person is good at PR for sure. But….caveat emptor

  9. I couldn’t help thinking, as I was watching it, that the commercial was playing just as much to a stereotype as the pink princess commercials it made fun of. It’s just that it’s the tomboy stereotype rather than the girly girl one. And that might be a more positive stereotype for girls (I say might because I don’t really know if it is or not), but it still is a stereotype.

  10. Parody doesn’t just mean ‘transforming’ by being creative or funny. To qualify as a parody, the new use has to focus on making fun of either the creator or the content. As others have noted, this is just a very cute ad.

    The legal reasoning is like that for treating reviews and literary criticism as fair use. The courts assume that an author will not objective review or criticize his own work, so there has to be an opening in copyright for that even if it involved quoting or revealing plot details. The same is true of parody and creators. Many are unlikely to make fun of themselves or what they’ve done.

    Courts have carried that quite far. There was a Beanie Baby lawsuit in which someone published a guide to Beanie Babies, defying a visual copyright on any picture of the toys. The court ruled in favor of the guide for two reasons:

    1. A collectible item needed an independent guide to what was being collected.

    2. There’s no effective way to distinguish between the babies but by publishing their pictures.

    Weakening the case for the Bean Baby makers was the fact that they’d been playing a devious game with other guidebooks. They’d threaten to sue unless changes were made to meet their demands. Then they insisted that the guide contain a ‘unauthorized’ disclaimer, despite the fact that it had been authorized. The maker’s devious behavior with other guides made it even clearer to the court that a REALLY independent guide needed.

    I ran into something similar with Untangling Tolkien, a book-length, day-by-day chronology of Tolkien’s The Lord of the Rings that I’ve written and published. Before it came out, I was sued by the Tolkien estate for reasons that I knew were unlikely to stand up in court.

    But there was one reason for claiming copyright infringement that I realized might be effective. To be an effective chronology, I had to describe what every character did on every day. I not only was giving away the ‘heart’ of the story, the usual test for copyright infringement, I was giving away almost everything that happened. Virtually every event in the tale was there in the midst of moon phase, sunrise times, distance traveled etc.

    My defense:

    1. I argued that a tale as chronologically complex as LOTR needed independent verification of whether Tolkien’s chronology hung together. Like the broader sort of criticism, that’s not something the author or his estate can be trusted to do. For a full explanation of that, see the book’s last chapter.

    2. Compiling such a chronology necessitates giving details about what happened. I compensated for what I was revealing by making it most unliterary. I made events bullet lists typically less than a line long. No one, I stressed, would read my book in place of the real thing.

    And it must have worked. The estate’s lawyers bailed out rather than face concurrent motions for summary judgment and the judge dismissed their lawsuit ‘with prejudice,’ which means “don’t bring it up before this court again.”

    Necessity arguments like those are a major part of a fair use defense. You have to use the music and adapt the lyrics in a parody, so people will recognize what is being parodied. You have to use the same characters and basic plot in a movie parody. You have to quote an author to back up claims that the author can’t write. You have to reveal the book’s main plot if you want to make fun of it or call it stupid. Necessity trumps copyright.

    That said, you can only take enough to accomplish your purpose. The problem with GoldiBlox is that their purpose was selling their stuff not parody, not criticism, not anything legit as fair use. They might have made that video a parody, but they didn’t.

    That said, both parties in this dispute have probably benefited from the publicity. The smart thing for them to do is to yank the video and drop the lawsuit. Legal disputes can get very expensive.

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