Myth Busting: Yes, An Advertisement Can Be Fair Use Parody
from the keep-busting-those-myths dept
We'd already explained how commercial use can be fair use in the Goldieblox v. Beastie Boys case, but we've continued to see people attacking the idea that an advertisement could possibly be either parody or fair use. I was going to write up something in more detail, but as is all too often the case, the awesome Andy Baio already did it and did it better, with a fantastic mythbusting of a variety of false statements being thrown around by many well-meaning, but not very knowledgeable, people talking about the case. He covers a lot of ground, all of which is worth reading, but I want to highlight the key case he talks about concerning the possibility of an ad being fair use as a parody. On Twitter and in the comments, I saw many people insist that an advertisement couldn't be either of those things, and insisting there were no cases to support the claim. Well, that's not true:The ruling is well worth reading, citing the same Supreme Court case we talked about yesterday about how commercial use can absolutely be fair use, but directly applying it to this case, where a parody ad was created. While it recognizes that this is a commercial use, it notes that the overall weight of the four factors test makes it fair use:More than any other, I've seen this myth repeated everywhere. Can a company parody a famous artist's work and use it, against their will, to advertise an unrelated product? Actually, yes, as long as the use is transformative enough.
The most famous case is the Naked Gun advertisement below, a parody of photographer Annie Leibovitz's famous portrait of Demi Moore for Vanity Fair.
If you care about this sort of thing, the District Court's decision is a fantastic, and surprisingly readable, breakdown of the history of parody and fair use.
The fair use doctrine has been described as a "guarantee of breathing space at the heart of copyright."... This breathing space ensures that copyright will not stifle the very proliferation of creative works that it was designed to foster. Three of the four fair use factors in the present case militate in favor of a finding of fair use, largely because the defendant's transformation of the plaintiff's photograph has resulted in public access to two distinct works, serving distinct markets, with little risk that the creator of the first work will be disinclined to create further works that may be open to parody. Because I agree with the Second Circuit that in this case "[a]ccording [the] proprietor [of the copyrighted work] further protection against parody does little to promote creativity, but it places a substantial inhibition upon the creativity of authors adept at using parody, ..." I hold that the fundamental purposes of copyright are best served by a finding that defendant's use of the Moore photograph is a fair one.Earlier in the ruling, she also notes that while commercial use may be less likely to be protected as fair use, there are plenty of cases where it makes sense, if you understand the purpose of copyright:
I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one.Those findings clearly apply in the Goldieblox case as well, where the two situations are nearly identical. In fact, it's arguable that in the Liebovitz case, she actually had an slightly stronger claim than the Beastie Boys would have here.
And yes, this ruling is only a district court ruling in NY, so it is in no way binding on the California court where Goldieblox filed its declaratory judgment suit. But it highlights that, contrary to the claims of way too many people, yes, an advertisement can be a fair use parody of a different work.
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Filed Under: advertisements, annie liebowitz, beastie boys, copyright, demi moore, fair use, leslie nielsen, naked gun, parody
Companies: goldieblox
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In other words, if we allow advertisers to simply mock popular songs in their ads, without paying for the rights to the songs, the lucrative licensing of songs for advertisements will eventually dry up. Why pay for the song you want when you can simply mock the song you want for free?
I think the argument is complete BS, but it will be argued. Attorneys love to argue the slippery slope.
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Fair use. A movie company used a photo of a naked pregnant woman onto which it superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Important factors: The movie company’s use was transformative because it imitated the photographer’s style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).) - See more at: http://fairuse.stanford.edu/overview/fair-use/cases/#sthash.TKjD1WIS.dpuf
When a judge sees this case, they'll read the part where GoldieBlox says "We did this for comment/ridicule!" and them Judge will ask "You mean a commercial for entry to be shown during the Super Bowl? That's not art, that's an ad. Better luck next time, denied."
Like previously mentioned, how you reconcile GoldieBlox with Tom Waits' numerous successful victories is going to be amusing. Glad to see you've dropped the 2LiveCrew red-herring (because they only used a sliver of content compared with this) and basically ignore what it takes to create a work of art. This will be a good learning experience for you, and your readers, who are sorely mistaken about the wide divide between art and commerce. Fair use isn't on trial here, it's can fair use exploit an artist to sell items / widgets / blocks / Frito Lays / etc. The law is not on your side here, but the shovel industry applauds your line of reasoning. Will continue to stay tuned!
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Everyone's been citing examples of Weird Al, the 2 Live Crew case, and other for-profit parodies, and the advertisement argument is being brought up as a reason why that's not a fair comparison. Between that and the fact that they used "Beastie Boys" in the title of the video to associate it with their product (which could be a publicity/privacy issue rather than a copyright issue), there are winnable arguments against Goldieblox.
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*Sniff*
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It isn't a parody. It's the same song with the words changed to suit the advertisement.
When Sunkist changed the words to 'Good Vibrations' and put it in an ad do you think they claimed "parody! fair use!" and told Brian Wilson to go fuck himself?
Nope. Only the robber barons in SillyCON Valley would be so douchey and stupid to try this.
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The fact is, the copy is not a copy. It's a whole new original work of art that simply references another work of art.
It's actually very difficult days to create new art without referencing other art. We are all steeped in pop culture. It's how we communicate with each other. We point to other works to make our point because that's how the audience understands art. It's the very basis of creativity.
There's no compulsory license for photograph - copying can only be done by permission. And while you can pay for a compulsory license for a song, but that does not allow you to change the lyrics or music in any way. Paying doesn't give you permission to create a parody.
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Oh Well
Could i take any movie and just change the vocals to make it a different story and licence it as a new movie and benefit from the copyright on it?
I think the problem comes from many people believing that the content creator should benefit financially if any of their work is used to generate income in any way. Whereas sharing content for no financial gain should be made legal.
I guess we learn something new every day, but thank you for explaining and hopefully someone can answer my question.
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A big part of the problem people seem to have is that it's a commercial, and people instantly hate or disregard anything that is a commercial.
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Well even Justice Kennedy brought this up in the concurring opinion of Campbell v. Acuff-Rose Music, Inc. with this statement:
I think the court will need to determine Goldieblox intentions going into this one. Were they just looking to rip off someone's song for an ad or were they trying to create a discussion about gender bias that would create an interest in their products? Those are two very different motivations.
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Good argument.
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Right, but that's why I brought up the Liebowitz case. Can you argue that's not a fair comparison?
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How do you think parody works?
When Sunkist changed the words to 'Good Vibrations' and put it in an ad do you think they claimed "parody! fair use!" and told Brian Wilson to go fuck himself?
You really ought to learn something about fair use. It can be parody if it was *commenting* on the original. In that case, it's not doing it. In this case, there's a very strong argument that they are commenting on it.
Nope. Only the robber barons in SillyCON Valley would be so douchey and stupid to try this.
Um. Okay, so you're not here for any legitimate purpose than other to argue from a position of near total ignorance. Okay then.
As I've said elsewhere, Goldieblox may be complete douchebags. But that's not particularly relevant to the question of fair use.
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You may not be able to sell it to Cinemas, but you could most definitely do such a thing and distribute it safely for the purpose of criticism. The Copyright Office holds up a remix video, Buffy vs. Edward: Twilight Remixed as an example of how a derivative work made up entirely of clips from existing works is transformative enough to be fair use.
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No. Nor has anyone claimed otherwise. It would have to go through a fair use analysis, and that would very much depend on what you were doing with it, but merely moving the clips around without some further purpose, would almost certainly not be considered fair use.
I don't get this line of argument, frankly. People keep insisting if this one specific situation is deemed fair use that suddenly everything is fair use. No one has made that argument.
Could i take any movie and just change the vocals to make it a different story and licence it as a new movie and benefit from the copyright on it?
Again, the specifics would matter. This is why it's helpful to learn about fair use rather than making blanket statements.
I think the problem comes from many people believing that the content creator should benefit financially if any of their work is used to generate income in any way.
What many people believe and what the law actually says are two different things. And what matters is what the law says.
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Fuck you and your war on musician's rights, Masnick.
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The song is a key element, it's used in its entirety, it's not a parody, and it's a commercial advertisement.
This isn't "transformative", it is "slightly modified".
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The law says that piracy is illegal. That doesn't stop you from defending it and championing it tho, does it?
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A photo is a snapshot, single frame. Music is more complex and more than a single frame, a single bar, or one melody. Any musician can explain the difference between "copping a style" and "playing a note-for-note tribute" of an artist. Naked Gun = copping style for parody, GoldieBlox = playing note-for-note rip-off. So there's the first part, one photo versus an actual piece of music is the first place where you're stretching this thin.
If Naked Gun had used the Demi Moore photo only with the "Due in 3 months" tagline, it would have failed. Not transformative enough. In the context of a photo
If GoldieBlox had only lifted 1 verse of the Beastie Boys song, then taken it in a completely different direction - say, add in some Hans Zimmer EPIC STRINGS and the occasional John Powell BOOMING BASSLINE, and it'd be very transformative as an artistic work. It would contribute to adding a parodic perspective to the very nature of the song itself. They didn't do that. They went out of their way to preserve the sound/feel of the song - and then put the name of the artist in the very title of their piece to further increase the presumed relationship. They embraced the overall motif of the song, and absolutely did not pursue a path of artistic parody in the self-referential style that everybody associates with people like Weird Al.
So, they miss the artistic definition of parody on a straightforward basis, which is why it works for a commercial. Because it's a commercial and they need a commercial to tap into emotions and stuff to sell things. As another person pointed out, they're trying to market to a specific demographic that was sentient in 1986 and/or is old enough to remember the Beastie Boys popularity with this song.
Basically, comparing a photo to a song is pretty disingenuous, so when you do get around to the Tom Waits lawsuits and how they more closely relate to this situation, that'll be much more appropriate.
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That's the question that this court in California has to decide. And if they take into account the Liebovitz case, one would be inclined to think that they would agree with Goldieblox on their parody being fair use (I still find it in poor taste, but that's just my view on the whole thing).
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I'd argue it's more modified, but then again I'm a wannabe author so I give written prose a lot more value than the average person, I suppose.
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Does that excuse THE REASON they are commenting on the original source material is so they can sell more items / widgets based on evoking an emotional response in an audience?
You're trying to deny intent in this context, which is too bad, because it seems like their behavior indicates they are douchebags who are not abiding by the spirit of the law, and will get taken to task for it. You simply can't admit that their argument is potentially too weak because you've bought into this stance at all costs - my point is that I agree with you on many instances, but this one, wow, you are really doubling down. February 19 can't come soon enough.
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Artistic definition of parody (which I think is a bad word here) is met by the Transformative changes to the intent and meaning of the song by the lyrical changes. No requirement for changes to the instrumental line comes up.
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Where did they state this?
which the original artists would be provided consideration for the potential damage to a well-known reputation
There is NOTHING in copyright law that says that the original's reputation matters. This is a complete non-issue under the law. I'll admit that Goldieblox's move may have been an obnoxious move that many people find morally repugnant, but that's not the copyright issue.
doesn't change the fact that it's an ad first
Again, the case above is also ad first. You keep saying stuff that you believe to be true, but which is not true under the law.
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How can the Beastie Boys reputation be damaged in any way here? Have they given permission? No. Have the offered a license? No. Their position and reputation are completely intact, and they have suffered no losses at all, financial or otherwise. In fact they're probably made more money from the increased interest in their music.
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This is both wrong and a meaningless distinction. Both Naked Gun and Goldieblox made significant changes for the sake of parody, while keeping key elements to make the parody work (i.e., to make it known what the original was).
If GoldieBlox had only lifted 1 verse of the Beastie Boys song, then taken it in a completely different direction - say, add in some Hans Zimmer EPIC STRINGS and the occasional John Powell BOOMING BASSLINE, and it'd be very transformative as an artistic work.
That only matters if they were making a different transformative argument, not a parody one. So that's meaningless.
. They went out of their way to preserve the sound/feel of the song
Which, um, is kind of the WHOLE POINT of a parody.
They embraced the overall motif of the song
Again, that's how you do a parody.
Basically, comparing a photo to a song is pretty disingenuous
You didn't just say that, did you? No offense, but it's difficult to take you seriously. Yes, there are differences between music and photos, but the argument works against you.
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So you're against anybody making money from developing and selling products that they hope will provide a societal benefit. They should just do it for free right?
This position seems so illogical it seems you're simply sticking to it simply as an excuse to attack Mike personally.
Your concern for Adam Yauch's personal feelings do not seem in the slightest bit genuine.
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As for the artist's wishes - that's a touchy matter but there's no reason to think Goldieblox was aware of any of that. I'm a fan of the original song (and the parody) and I had no idea.
Thankfully with fair use, the artists' wishes don't really matter. That's the whole point.
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We haven't. You do realize that the Liebovitz ruling relied on that ruling, don't you? Of course you do.
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Art has absolutely nothing to do with how much work it takes.
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That's your very subjective opinion. Others would easily argue the exact opposite. The Naked Gun poster could be done easily in Photoshop. Whereas the Girls remake involved having to rewrite the entire lyrics of the song and then record an entirely different arrangement of the music with the new song.
Based on your own argument, seems like Goldieblox has a much STRONGER fair use claim.
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Mike's right, it's very hard to take you seriously when you say stuff like this. It seems you haven't ever listened to either song.
Perhaps you're just blinded (deafened?) by the music. Google the lyrics to both songs and read them. The only line they share is the title, Girls. Every other line is not only different but convey the exact opposite message, which is the whole point of the new song. It's actually more parodic than Weird Al's songs, which usually don't directly relate the original song's subject matter.
How you can argue that this is not transformative without laughing at yourself is beyond me...
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A single image can be as fundamentally life changing as any song or musical composition and it can take as much, or more effort to achieve the desired result.
There is a very complex process to the COMPOSITION of an image that seems to be lost on you.
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Actually you're making a convincing argument that the Beastie Boys' recording of Girls doesn't deserve copyright protection, then, as they just did the same thing. They just played the sheet music and recorded it. Heck, by your own argument, that's no work at all. :)
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I disagree with that argument as I believe both the Beastie Boys song and the Goldiblox song are both transformative works and fair use. I also used to believe that the song "Girls" was done as a juvenile jest intended to tease rather than serious misogyny, but the strong objection to a feminist version of the lyrics seems to prove otherwise.
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You know that's pretty much how all advertising works right? No, you probably don't...
"You're trying to deny intent in this context..."
Nobody has ever denied or tried to hide that this is an advertisement for a product, and it's disingenuous to claim so. But the product being sold has a message of female empowerment, so it's perfectly logical (in fact it's pretty damn obvious) to advertise the product with a song about female empowerment.
"...which is too bad, because it seems like their behavior indicates they are douchebags who are not abiding by the spirit of the law, and will get taken to task for it."
When you say the "spirit of the law", you don't seem to be referring to the original intent of copyright law, i.e. encouraging the creation of new works. Sounds more like the modern approach of obsessive control and financial greed.
"You simply can't admit that their argument is potentially too weak because you've bought into this stance at all costs..."
Given how important fair use is to keeping copyright (somewhat) under control, many people "bought into this stance" a long time ago and rightly believe in arguing strongly in support of it.
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So changing every single word but one, and making a statement in direct opposition to the original lyrics, is just a "slight modification"? I imagine most song writers and lyricists would be highly insulted by your opinion.
I'm curious about what you think of Weird Al Yankovic's works.
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These are not mutually exclusive concepts nor are they difficult to understand, except willfully.
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You mean like Bad Lip Reading?
http://www.youtube.com/user/BadLipReading
You can in some situations, but like Mike said, it would depend on the case...
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Correction there is NOTHING in US copyright law.
Moral rights that are accepted in almost every other country(for shame) absolutely grant the copyright owner and creator that right, in Japan and Germany the creator can even stop others from showing it if they don't get the permission from the creator and he feels offended or something.
http://www.unesco.org/culture/pdf/japan_cp_en
http://www.iuscomp.org/gla/statutes/UrhG.htm
h ttps://meta.wikimedia.org/wiki/Wikilegal/Moral_right_of_integrity
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The picture of Leslie Nielsen was an ad for Naked Gun 33 1/3. It wasn't claimed to be some sort of art done solely for comment or ridicule, it was a movie poster.
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Whip It!
I think the Rip It energy drink company should look into advertising using a parody of "Whip It" as well. "If you want some energy, drink some Rip It...Drink some Rip It. Rip It's good. I say Rip It! Rip It's good!" (I like Rip It so well I'll just let 'em have that one.)
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Do you, AC, honestly believe that a finding against fair use in this instance won't hurt musicians in the long run? Musicians (professional musicians at least) aren't just artists, they're for profit artists, and doing away with fair use because of the "profit motive" would effectively silence any pro musician who makes use of fair use laws. Which means pretty much all of them.
It is you, not Mike, who is engaging on a "war on musician's rights."
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Actually, that isn't their objection.
http://www.techdirt.com/articles/20131125/10182325360/beastie-boys-say-they-dont-want-musi c-ads-fair-use-doesnt-care.shtml
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Sunkist wasn't stupid enough to try and rip off musicians and claim their new lyrics were "commentary" and Goldieblox shouldn't have either.
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That picture is not taken from the movie, none of the movie is show, no dialog, or even an indication of what the naked gun movie is about, its not 'fair use' it is not "USE" at all!!
Nor is it a parody of anything, so its a poor example, and not the same thing as the beastie boys issue..
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No.
The hook- the word 'Girls', is exactly the same.
The arrangement is exactly the same as well, something anyone with a modicum of musical knowledge would know.
However you know exactly zero about music. Except of course all the different ways to steal it.
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Miller Beer tried a much less egregious version of this scam and.... lost.
http://www.leagle.com/decision/19901563737FSupp826_11414
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Adam Yauch made it clear his music couldn't be used in ads. Goldiblox knew they wouldn't get permission to use the song, so instead they did it anyway and tried to claim it was just a parody.
Nope, sorry, ain't gonna fly.
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My Techdirt account name has a link to my site in it.
If you don't think I'm a musician, and don't write songs, then you have no idea what you're talking about. My noise music is deliberately composed and arranged (some even have the [in]famous ABACAB form), and some has lyrics that I wrote. Before that, I played in a few rock bands. I can compose orchestral music (I studied music composition my first time through college), and my major instrument was guitar. For a while, I was playing out consistently, including a couple of small U.S. tours, and I have a couple of records out on (very tiny) labels. Also, in my last paying gig, I was contracted to do music, sound design, and write the Android sound engine for a local startup company.
I am not claiming I am anything special. In fact, the majority of the music I love is produced by people in roughly the same boat I am. (Most of whom I know personally.) And nearly all of the musicians who make any money at all - even the mega-stars - did exactly what I did, for many years, before winning the rock-star lottery.
If you think I'm "not a musician," then the only people you think are "musicians" are those who are bankrolled by some trans-national mega-corporation.
Which shows exactly where your loyalties lie. Hint: it's not with anyone who actually creates music.
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You're not a musician. You're a hobbyist maker of noise.
By your very arguments, the real "musicians" are the ones that have the least right to fair use.
After all, you're the one that is arguing that if the music is part of a commercial endeavor, it is not fair use. So, if I'm merely a "hobbyist," then I should have more fair use rights than people who you consider "musicians."
Of course, I don't believe such nonsense, but it's the only thing that is consistent with your position.
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By the way, since I doubt you'll believe me, here's something I scored and rendered myself:
http://www.khznoise.com/karlheinz/audio/play/54
Prokofiev it ain't, but I'd like to think it at least proves that I'm a "musician" of some sort.
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Actually GoldieBlox haven't made that claim, I did, to counter the point that the Beastie Boys are somehow being damaged by this.
"Adam Yauch made it clear his music couldn't be used in ads."
No, he made it clear that they wouldn't give permission if asked. That doesn't rule out the legal use of their music in ads.
"Goldiblox knew they wouldn't get permission to use the song, so instead they did it anyway and tried to claim it was just a parody."
Tried to claim? By any legal or common sense definition, it is a parody.
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LOL
According to you, songwriters, poets and authors are not really artists.
Seriously. Dude. Not cool.
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Let's get two things straight.
1. This "blog" does not, and never did, excuse "the fucking-over of musicians."
2. The "tech" industry (YouTube, Spotify, Pandora, Kickstarter, TuneCore, and so forth) has helped more musicians, and given them more of their income, than any legacy music corporation ever did. In fact, the only thing the legacy players ever did was attempt "the fucking-over of musicians" at every opportunity that they could.
And you know this, because you've been spreading lies on this site for years. News flash: nobody is buying them. Not the people here, not the majority of artists, and certainly not the general public.
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issues of "what is parody"?
The beastie boys "cover" song is just a plain rip with slightly different words, with no humor or parody intended, just a small change of outlook.
Used as part of a commercial venture, it's hard to see it as a parody and more as a cheap knock off, an attempt to appeal to consumers who may have liked or at least known the original song, and and attempt to play off it's fame for profit.
Repeating over and over that it could be fair use doesn't make it fair use. It doesn't even make it fair to the musicians at all, especially one who clearly stated he doesn't want his music used for commercials before he passed away.
(oh yeah, Mike... block this IP too.. you guys are slipping!)
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Until they let go of the false idea of creative output as property this nonsense will continue.
Those of us who share freely (yet can make a living by engaging with fans, etc.) don't see that problem because they're citing laws that have nothing to do with declaring copyright laws to be property laws. They were never meant to be.
And yes, Karl is a musician. Show him some respect.
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You're kinda missing the point
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Re: You're kinda missing the point
The Naked Gun picture "lifted" (your word) the entire composition, focus, setting and subject matter of the original photo. Those are the creative elements of a photograph that copyright protects. But there were enough changes (ie: Nelson's head) to change it so it parodies the original.
Goldieblox "lifted" (once again, your word) the melody and beat of the song, but changed it enough (ie: basically reversing the message of the lyrics) to make it a parody of the original.
How are these different again?
Bottom line is this: Copyright law allows Fair Use of works for the purpose of parodying the original. In order for a parody to work in the first place it MUST be recognizable as a spoof of the original. How would you accomplish parody at all if you can't copy enough of the original to make it recognizable?
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Re: issues of "what is parody"?
Ummm. Fair Use isn't about being "fair" to the creator at all. It's a mechanism built into copyright to keep it from running afoul of the First Amendment protections on Free Speech. It's how the courts allow copyright to exist in the first place. Without Fair Use no one could write a negative review or parody without asking permission first. That would severely curtail Free Speech and as a result copyright would eventually be declared unconstitutional and therefore not permitted.
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Re: You're kinda missing the point
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Re: You're kinda missing the point
" the endorsement of the Beastie Boys is worth a whole lot of money"
Tell us where in copyright law it says that the law exists to protect the market value of works, or the endorsement of artists (and this parody video harms that endorsement how exactly?)
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Nice try.
"In 1987, defendants created, manufactured and arranged for the repeated broadcast of a 30-second commercial on prime-time television for Miller Beer featuring three FAT BOYS look-alikes performing in the distinctly FAT BOYS style described above (the "Commercial")."
None of that happened in the GoldieBlox case.
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Oh, and look what happened today, hmm?
So yeah, nice try, you musician-hating asshat.
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Re: issues of "what is parody"?
You must be trolling, because there's no way anybody could be this stupid...
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This is probably why your comment got hidden within 2 hours, in case you're wondering.
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