Goldieblox Agreed To Pay Charity $1 Million For Using Beastie Boys' Girls

from the fair-use-gets-pricey dept

Mon, May 12th 2014 9:03am — Mike Masnick

It appears that the "settlement" between the Beastie Boys and Goldieblox was somewhat more significant than people imagined. Goldieblox will be contributing 1% of its revenue to a charity chosen by the Beastie Boys until it's paid up $1 million. Fair use ain't cheap, apparently.

Back in March, we noted briefly that the Beastie Boys and Goldieblox had settled their big legal dispute, over Goldieblox doing a commercial that included a parody of the Beastie Boys' song "Girls." We still strongly believe that this was a clear cut case of fair use, but the whole case got more emotionally complicated by the Beastie Boys general prohibition on the use of its songs in advertising, including Adam Yauch putting in his will that his music can not be used in ads. Legally, that statement has no bearing on the fair use analysis, but to many people, to ignore those wishes still felt pretty damn icky. Goldieblox appeared to fairly quickly realize that they were losing the war of public perception and capitulated.

However, the terms of the "settlement" were kept secret -- until now. And that's only because in a different legal fight between the Beastie Boys and Monster Energy Drink involving a Monster Energy Drink event where DJs played tribute to the Beastie Boys the day after Yauch passed away. The specifics of that case really aren't that important, but a recent filing in that lawsuit, concerning a "reasonable" licensing amount, also happens to reveal the settlement terms of the Goldieblox settlement (via Eriq Gardner):

The GoldieBlox Settlement granted GoldieBlox a retroactive license to use the musical composition of “Girls” between November 18, 2013 and November 28, 2013.... In exchange, GoldieBlox agreed to make annual payments of 1% of its gross revenue, until the total payments reached $1 million, to a charitable organization chosen by the Beastie Boys and approved by GoldieBlox which supports “science, technology, engineering and/or mathematics education for girls.” ... The parties also agreed to make certain, specifically worded public statements... and to keep the settlement confidential, with certain exceptions, including its use in litigation.

While $1 million donated to a charity that focuses on "science, technology, engineering and/or mathematics education for girls" is certainly a good thing, and settling this fight amicably is a good resolution, it's still somewhat disappointing. Again, the original usage was almost certainly fair use, and I always worry when people diminish fair use, or assume that there can be no fair use in commercial cases. That's simply untrue, and agreeing to pay $1 million, even to charity, for a clear fair use, which was online for just 10 days, did nothing to harm the original song (and, in fact, brought a lot more attention to some important ideas), seems like an unfortunate result.

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Filed Under: beastie boys, copyright, fair use, girls, settlement
Companies: goldieblox

143 Comments

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Anonymous Coward, 12 May 2014 @ 9:09am

Glad stem stuff will get a boost, but beastie boys need to realize they just are not that important to people anymore.

Fair use is fair use and they come off as bullies.
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- b, 12 May 2014 @ 10:00am
  
  Re:
  Since when is this fair use? Only a loon would think it's fair to use someone's hard work to sell their own product. For years, artists have avoided selling out yet Goldieblox just took.
  
  They're not bullies. Goldieblox is the bully by taking what's not theirs and then thinking that it's all okay.
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  - Michael, 12 May 2014 @ 10:05am
    
    Re: Re:
    There are a number of factors in determining fair use - the fact that this was commercial is important, but no less important than the fact that it was a parody.
    
    There were a number of good write-ups about it at the time (a google search will bring you to them) and I agree that it was probably fair use.
    
    I also believe that Goldiblox shouldn't have used it anyway.
    [ link to this | view in chronology ]
    - This comment has been flagged by the community. Click here to show it
      
      jackn, 12 May 2014 @ 10:16am
      
      Re: Re: Re:
      There were a number of good write-ups about it at the time (a google search will bring you to them) and I agree that it was probably fair use.
      
      If you search your own mind and intellect, you may find yourself realizing, "Hey wait, this isn't fair use. Those guys on the internet are just biased because of there desire for NO copyright." If there is not copyright, all uses are fair. I think you are in this camp if you think this is fair use. e.g. you are stuck in a cognitive disorder if you think this is fair use and you support copyright in any fashion.
      [ link to this | view in chronology ]
      - Michael, 12 May 2014 @ 10:31am
        
        Re: Re: Re: Re:
        If there is not copyright, all uses are fair.
        
        This statement shows a lack of understanding of copyright law in the US. Did you attend a foreign law school?
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 10:42am
        
        Re: Re: Re: Re: Re:
        Yay, I win again!
        
        Thanks, my work here is done.
        [ link to this | view in chronology ]
      - Karl (profile), 12 May 2014 @ 9:28pm
        
        Re: Re: Re: Re:
        if you think this is fair use and you support copyright in any fashion.
        
        Fair use has been part of copyright law back when it was still common law. Arguing against fair use is arguing against copyright.
        
        And, yes, I also believe it was fair use. Goldieblox re-recorded the whole thing, and created different lyrics, in what was obviously a parody.
        
        Ironically, the only thing that the Beasties could have sued over was the composition... and that was "stolen" from the Isley Brothers' "Shout." (Rick Rubin, the producer of that song, has outright stated as much.)
        [ link to this | view in chronology ]
- Pseudonym, 12 May 2014 @ 4:39pm
  
  Re:
  I agree broadly with Michael's take on the whole thing, and I am no fan of the Beastie Boys, but I have to disagree with you. If they weren't important, people wouldn't be using their music as cultural references.
  
  Nor do they don't come off as bullies. They come off as honouring the memory of a nice dead guy.
  
  Goldieblox were (IMO) legally in the right, but they lost the PR battle.
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Michael, 12 May 2014 @ 9:12am

You gotta fight for your right to get paid any time someone cries 'fair use'.
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- This comment has been flagged by the community. Click here to show it
  
  jackn, 12 May 2014 @ 10:45am
  
  Re:
  you gotta fight for your right to rip-off other people's work.
  [ link to this | view in chronology ]
  - Michael, 12 May 2014 @ 10:52am
    
    Re: Re:
    Did you send them a check, or are you claiming fair use?
    [ link to this | view in chronology ]
    - This comment has been flagged by the community. Click here to show it
      
      jackn, 12 May 2014 @ 11:37am
      
      Re: Re: Re:
      Sore loser much? Can't live in a world with grey areas? Why not just go full pirate, its all black and white to a pirate.
      [ link to this | view in chronology ]
      - Pragmatic, 13 May 2014 @ 6:02am
        
        Re: Re: Re: Re:
        Ironically, the only thing that the Beasties could have sued over was the composition... and that was "stolen" from the Isley Brothers' "Shout." (Rick Rubin, the producer of that song, has outright stated as much.)
        
        Care to comment on that, or are you too busy ignoring the reality-based community?
        [ link to this | view in chronology ]
That Anonymous Coward (profile), 12 May 2014 @ 9:25am

It is so nice that copyright law can't be decided without worrying about feelings and perception.

If a corporation can't take a stand for fear of public backlash, even if they are found to be in the right, what chance does the public have?
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- bob, 12 May 2014 @ 10:02am
  
  Re:
  Since when was Goldieblox right? It wasn't fair use. They are engaged in a commercial venture. They took what wasn't theirs for their own profit. How is that fair?
  [ link to this | view in chronology ]
  - That Anonymous Coward (profile), 12 May 2014 @ 10:12am
    
    Re: Re:
    aww bob never change...
    Reading is a useful skill and I have hope someday you might learn to do it and figure out that comprehension thing too.
    
    "even if they are found to be in the right"
    If would be the word you skimmed over in your frothing rage.
    
    Commercial venture doesn't negate the concept of fair use, despite your desire to have that be true. Had this case actually managed to move forward maybe then you could bitch about how the court ruled wrong, but we never made it that far. There is a case that can be made for both sides of the issue, not just the one you imagine, and a court ruling would have helped settle that issue.
    
    In the future, before hitting reply, how about you actually read what you are replying at least 3 times so you catch all of the words. I understand that a long word like if can be hard for you to parse.
    [ link to this | view in chronology ]
    - jackn, 12 May 2014 @ 10:19am
      
      Re: Re: Re:
      ah, the marching cry of the anonymous coward.
      
      "Commercial venture doesn't negate the concept of fair use,"
      
      Here's one for you, "Parody doesn't negate the concept of copyright infringment."
      [ link to this | view in chronology ]
      - That Anonymous Coward (profile), 12 May 2014 @ 11:07am
        
        Re: Re: Re: Re:
        Parody doesn't mean it is infringement either.
        
        This is why we have laws, rather than your feels to decide these things.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        jackn, 12 May 2014 @ 11:29am
        
        Re: Re: Re: Re: Re:
        Yep, and its good for me. Like in this case, I always win.
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        Anonymous Coward, 16 May 2014 @ 3:38am
        
        Re: Re: Re: Re: Re:
        No use in replying to 'jackn,' as they are entirely deluded. A loss is a win in their book. That, or they are using the 'lalalalala I can't hear you' defense.
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avideogameplayer, 12 May 2014 @ 9:27am

Let's be real about this:

How much more would it cost Goldieblok to get a fair use ruling? Probably more than the $1 million they settled for...

And the money is going to a charity so at least it's not going to those MAFIAA bozos...
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- Michael, 12 May 2014 @ 9:31am
  
  Re:
  How much more would it cost Goldieblok to get a fair use ruling? Probably more than the $1 million they settled for
  
  Which is a complete travesty. Everyone that is part of the legal system in the US should be embarassed that it can so easily be used to harm someone financially even if they have done nothing wrong.
  [ link to this | view in chronology ]
  - jackn, 12 May 2014 @ 10:21am
    
    Re: Re:
    nothing wrong, except for copyright infringement, lets not forget that.
    [ link to this | view in chronology ]
    - Greevar (profile), 12 May 2014 @ 5:50pm
      
      Re: Re: Re:
      Prove it or shut the hell up! Cite the exact wording in the copyright act that proves this is invariably infringement.
      [ link to this | view in chronology ]
      - jackn, 13 May 2014 @ 4:59am
        
        Re: Re: Re: Re:
        . In the settlement agreement, GoldieBlox agreed to pay $1,000,000 to charity for a license from the Beastie Boys to use "Girls" for the period of time that they had used it.
        
        2. GoldieBlox also admitted that they had made a mistake in not asking the Beastie Boys for a license before using "Girls."
        
        3. GoldieBlox also agreed to publicly apologize to the Beastie Boys on their website.
        
        4. GoldieBlox also agreed to publicly promise to not make the same mistake in the future.
        
        5. As per the settlement agreement, the Beastie Boys agreed to do nothing other than grant the license to GoldieBlox.
        
        now, I believe it is you that should stfu
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        Mike Masnick (profile), 13 May 2014 @ 5:27am
        
        Re: Re: Re: Re: Re:
        You just repeated the argument where we already explained why it was wrong here: http://www.techdirt.com/articles/20140511/06592527192/goldieblox-agreed-to-pay-charity-1-million-usi ng-beastie-boys-girls.shtml#c1304
        
        Do you have anything else?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2014 @ 7:59am
        
        Re: Re: Re: Re: Re: Re:
        You keep referring to that poorly written article as evidence of something. What is your point - that this is clearly fair use? Sorry, but no.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 14 May 2014 @ 6:29pm
        
        Re: Re: Re: Re: Re: Re:
        You keep referring to that poorly written article as evidence of something. What is your point - that this is clearly fair use? Sorry, but no.
        [ link to this | view in chronology ]
        
        Greevar (profile), 13 May 2014 @ 3:39pm
        
        Re: Re: Re: Re: Re:
        You have completely and totally failed to prove anything. As I said, cite the wording in the COPYRIGHT ACT that indicates this is clear infringement since that is the law that is applicable to the issue and not your gut feeling. I did not say give me your baseless speculation.
        
        1. That was their choice. It does not prove infringement.
        
        2. Their admission is not proof. There are legally defined criteria to test for fair use.
        
        3. See number 1.
        
        4. See number 3.
        
        5. If this had actually gone to court and a judgement of fair use was found, GB would never have been under any obligation to ask for a license.
        
        I say again, find the text in the law that proves this to be infringement. I don't care about your opinions and baseless assumption.
        [ link to this | view in chronology ]
- jackn, 12 May 2014 @ 9:36am
  
  Re:
  Lets be even more real. How much could thay have payed for to use the song in their commercial venture? (50,000/ 100,000, maybe even less?)
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  - Michael, 12 May 2014 @ 9:39am
    
    Re: Re:
    The Beastie Boys will not license their music for commercials - at all.
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    - jackn, 12 May 2014 @ 10:06am
      
      Re: Re: Re:
      Good for them. There was a day when this was a respectable position.
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  bob, 12 May 2014 @ 10:03am
  
  Re:
  And who says they would even get one. What they did wasn't fair. They took what wasn't theirs and they used it to profit. That's not fair use. Period.
  
  You can go on dreaming and drinking the Kool aid around here but that won't change how fair use is interpreted. They were guilty of taking and so it's good they're paying.
  [ link to this | view in chronology ]
  - Anonymous Coward, 12 May 2014 @ 11:09am
    
    Re: Re:
    You're flat-out lying, you know.
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  - Zonker, 12 May 2014 @ 4:57pm
    
    Re: Re:
    What Goldieblox did is absolutely fair. They wrote a parody (every word different from the Beastie Boys song but one: "Girls") turning a chauvinistic song into an empowering one. That was Goldieblox's creative work which they have a right to use as they see fit. The Beastie Boys song would not have been appropriate for the purpose Goldieblox envisioned.
    
    Don't let emotions over a deceased band members wishes *for their own music* trump the legal rights of others under copyright law. Commercial use is not dispositive of the fair use rights of parody as decided in the 2 Live Crew "Pretty Woman" case. If Roy Orbison's wishes for control over how "Pretty Woman" could be not be used against 2 Live Crew's right to make a parody for profit then neither does the Beastie Boys. In fact, the tune for "Girls" was lifted from the Isley Brothers' "Shout" so the Goldieblox parody could just as well have been a parody of that song without the Beastie Boys having anything to do with it.
    
    By your reasoning, Weird Al Yankovick could not have make money selling his "Amish Paradise" parody of Coolio's "Gangsta's Paradise". Originally done without permission and against Coolio's wishes before coming to his senses and admitting it was fair use and there was nothing he could do about it.
    [ link to this | view in chronology ]
  - Pragmatic, 13 May 2014 @ 6:04am
    
    Re: Re:
    Bob, the Beasties were guilty of taking from the Isley Brothers. Where are your comments on that?
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- Anonymous Coward, 12 May 2014 @ 10:23am
  
  Re:
  Seeing as it wasn't even remotely close to being fair use, no amount of money would have bought them such a ruling. And they knew it.
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  - athe, 12 May 2014 @ 10:43pm
    
    Re: Re:
    You people keep regurgitating this line that "IT'S NOT FAIR USE!!!" without any reasoned analysis. Meanwhile, those saying that it could be fair use have laid out their reasons.
    
    If you want to be taken seriously, perhaps you should provide some justification for your statements...
    [ link to this | view in chronology ]
- jupiterkansas (profile), 12 May 2014 @ 11:17am
  
  Re:
  And going to a charity that will help create more customers for Goldieblox products - something they would probably do anyway if they were a highly profitable company.
  
  Not to mention I'd never heard of Goldieblox before this incident, so it's pretty much a marketing expense.
  
  And the Beastie Boys maintain their street cred.
  
  Everyone's a winner here.
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Anonymous, 12 May 2014 @ 9:28am

Not fair use
Liebovitz was a clear case of parody, while Goldieblox was just using someone else's song to move their overpriced, second-rate edu-toys -- same as Apple using Eminem's "Lose Yourself" without his permission to move iPods.

"Does Mike Masnick find the infringer to be sympathetic?" isn't a factor in the fair use analysis that I've seen any court employ.
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- Michael, 12 May 2014 @ 9:35am
  
  Re: Not fair use
  The song in the Goldieblox spot was definitely parody.
  [ link to this | view in chronology ]
  - jackn, 12 May 2014 @ 9:37am
    
    Re: Re: Not fair use
    sorry dude, Parody alone isn't enough of defense.
    [ link to this | view in chronology ]
    - Michael, 12 May 2014 @ 9:41am
      
      Re: Re: Re: Not fair use
      I completely agree, it is not.
      
      I was just responding to the original comment that said that it was not parody. It was.
      [ link to this | view in chronology ]
    - Greevar (profile), 12 May 2014 @ 6:19pm
      
      Re: Re: Re: Not fair use
      Nor is commercial use sufficient grounds to negate fair use.
      [ link to this | view in chronology ]
Anonymous Coward, 12 May 2014 @ 9:33am

>While $1 million donated to a charity that focuses on "science, technology, engineering and/or mathematics education for girls" is certainly a good thing,

it's just not as good as $1 million donated to a charity that focuses on suicide prevention for boys.
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- Anonymous Coward, 12 May 2014 @ 9:33am
  
  Re:
  Or this: http://singularityhub.com/2014/05/12/3d-printing-brings-healing-to-victims-of-war-in-sudan/
  [ link to this | view in chronology ]
- Anonymous Coward, 12 May 2014 @ 9:54am
  
  Re:
  I do agree. I work in a school district (have worked in 4 over the years) and all I see are signs that say things like 'the most important thing a girl wears is her confidence' posted in the buildings (usually Elementary, but occasionally in the HS buildings also).
  
  Im glad girls are getting their fair shake at stuff, but what does that tell the little boys who never see a poster that tells them how important they are also.
  [ link to this | view in chronology ]
jackn, 12 May 2014 @ 9:34am

"We still strongly believe that this was a clear cut case of fair use"

Well, you were/are wrong.

Your examples in the previous article don't equate to this situation.

Its ok, everyone is wrong once in a while, just don't double down on your flawed logic.
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- Michael, 12 May 2014 @ 9:43am
  
  Re:
  Feel free to present your arguments against this being a case of fair use.
  
  Just saying "you were/are wrong" is not a very good argument.
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  - bob, 12 May 2014 @ 10:05am
    
    Re: Re:
    There are many of them. The easiest one is that Goldieblox took what wasn't theirs and used it for profit. They didn't write the original song. The Beastie Boys are entitled to compensation.
    [ link to this | view in chronology ]
    - jackn, 12 May 2014 @ 10:07am
      
      Re: Re: Re:
      seems reasonable
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    - That Anonymous Coward (profile), 12 May 2014 @ 10:15am
      
      Re: Re: Re:
      And what is your view of the labels who took music they did not have the rights to and made millions in Canada with their commercial venture? If they faced the same penalties they insist everyone else pay they were on the hook for billions.
      [ link to this | view in chronology ]
      - This comment has been flagged by the community. Click here to show it
        
        jackn, 12 May 2014 @ 11:30am
        
        Re: Re: Re: Re:
        are you just a punk kid? Really, this is your argument, "look over there! Really, look over there"
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    - Michael, 12 May 2014 @ 10:36am
      
      Re: Re: Re:
      So if it had not been for profit, it would have been ok? Or if, say, The Beastie Boys had used samples in some of their music they may be on the wrong end of someone else's claim?
      
      Is "for profit" your only argument against fair use? While that may be an emotional subject for you, it is simply not the law. Do you have any insight about this particular use and how ALL of the factors for fair use apply to it?
      [ link to this | view in chronology ]
      - jackn, 12 May 2014 @ 10:51am
        
        Re: Re: Re: Re:
        Is "for profit" your only argument against fair use? -NO
        
        Emotional subject - you should check yourself - Have you heard of projecting? You are really seeing reality, but a distortion caused by your 'emotional bias.'
        
        is Parody your only argument?
        [ link to this | view in chronology ]
        
        Michael, 12 May 2014 @ 11:11am
        
        Re: Re: Re: Re: Re:
        Here would be my short analysis:
        
        1) the purpose and character of your use (dead heat)
        Parody is transformative and the original song appears to be send a different message, but a commercial use. I think these two pretty well cancel each other out here.
        
        2) the nature of the copyrighted work (-1 for fair use)
        The original is a for-profit commerially distributed song. It was already published previously.
        
        3) the amount and substantiality of the portion taken (+1 for fair use)
        This goes to both length of the song and the portions of it that were used. The lyrics were different, the tune was not exactly the same, and only a portion of the song was actually used rather than a song of equal length.
        
        4) the effect of the use upon the potential market (+1 for fair use)
        There was no market for this song in commercials because the Beastie Boys do not license it for commercials. The commercial is not a substitute for the original song.
        [ link to this | view in chronology ]
        
        jack, 12 May 2014 @ 11:43am
        
        Re: Re: Re: Re: Re: Re:
        1) the purpose and character of your use (dead heat)
        Parody is transformative and the original song appears to be send a different message, but a commercial use. I think these two pretty well cancel each other out here.
        
        I say -1 to glodlyblox. More than just a commercial use (i.e. a documentary, etcc..), but a commercial. so -1 to the infringer's team.
        [ link to this | view in chronology ]
        
        Michael, 12 May 2014 @ 11:53am
        
        Re: Re: Re: Re: Re: Re: Re:
        More than just a commercial use (i.e. a documentary, etcc..), but a commercial
        
        Do you have any legal basis for believing that "use in a commercial advertisement" is elevated to a higher level of commercial use?
        
        Also, this goes back to an earlier question: Is "for profit" your only argument against fair use?
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 1:34pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "the purpose and character of your use "
        
        Think of that real hard for a least an hour
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        Anonymous, 12 May 2014 @ 4:55pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Think real hard of jackn's mother and sister getting it on for an hour.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        jackn, 12 May 2014 @ 5:03pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Its techdirt! the real law.
        [ link to this | view in chronology ]
        
        athe, 12 May 2014 @ 10:49pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Or, since you seem to know what it is, lay out your well reasoned arguments.
        
        Or, more likely, resort to ad-homs...
        [ link to this | view in chronology ]
        
        Anonymous Coward, 13 May 2014 @ 5:00am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Nice double reverse ad hom
        [ link to this | view in chronology ]
    - Anonymous Coward, 12 May 2014 @ 11:10am
      
      Re: Re: Re:
      That has nothing to do with fair use.
      [ link to this | view in chronology ]
    - Togashi (profile), 12 May 2014 @ 4:08pm
      
      Re: Re: Re:
      Weird Al Yankovic didn't write the original of a lot of his music. He directly profits off sales of his parodies. He doesn't pay a dime to any of the original artists. He gets their permission because he's a good guy, but legally he does not have to. His parodies don't even typically make any sort of point. Please explain what you think makes his and Goldieblox's legal sitations different.
      [ link to this | view in chronology ]
      - BeeAitch (profile), 12 May 2014 @ 7:20pm
        
        Re: Re: Re: Re:
        *crickets*
        [ link to this | view in chronology ]
Anonymous Coward, 12 May 2014 @ 9:36am

I'm going to surprise myself by saying that at least that money is going to be contributing to making a difference. Not happy with the Beasties, though.
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Anonymous Anonymous Coward, 12 May 2014 @ 9:37am

Fair Use Consideration
Fair use aught to be considered very near the beginning of each and every copyright infringement case. In fact, it aught to be that the plaintiff have considered and written out the fair use tests, and how they feel they don't apply of course, in the original suit.

That is isn't is a testimony to the abusive rules promulgated by the incumbent gatekeepers.
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- jackn, 12 May 2014 @ 9:39am
  
  Re: Fair Use Consideration
  I think they did consider it, it was ruled NOT FAIR ( i mean that part is obvious - that it is NOT FAIR use).
  
  Whats your next tactic?
  [ link to this | view in chronology ]
  - Michael, 12 May 2014 @ 9:52am
    
    Re: Re: Fair Use Consideration
    I don't remember there being a ruling. If you have a link to one, I would appreciare you posting it.
    [ link to this | view in chronology ]
- Michael, 12 May 2014 @ 9:50am
  
  Re: Fair Use Consideration
  That is sort-of what happened here.
  
  The Beastie Boys had their lawyers send a letter to Goldieblox informing them that they believed the spot was infringing and Goldiblox actually sued for declaratory judgement that their spot was not infringing.
  
  Then, if memory serves me, the Beastie Boys counter-sued for infringement, the internet buzzed a lot about it, Goldiblox got a bunch of bad press, and then they settled in secret.
  
  Settling was probably the best thing for Goldiblox, but that does not mean it was not fair use.
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  - Internet Zen Master (profile), 12 May 2014 @ 10:16am
    
    Re: Re: Fair Use Consideration
    Thing is, suing first instead of trying to work things out without dragging the courts into this was, well, a dick move by GoldieBlox, regardless of the song's fair use status.
    [ link to this | view in chronology ]
    - Michael, 12 May 2014 @ 10:41am
      
      Re: Re: Re: Fair Use Consideration
      I agree, but it is also what is made necessary by the law because of the way fair use is determined.
      
      The simple version is by suing for a declaratory judgement that the use was not infringing, they get to make the fair use argument up front. If they had waited, they would not have been able to make the fair use argument until later in the case - and the difference can be millions of dollars in legal fees.
      [ link to this | view in chronology ]
    - jack, 12 May 2014 @ 10:44am
      
      Re: Re: Re: Fair Use Consideration
      The song has a fair use status? what does that mean? Can we all use it in our own commercials? do we even need to parody it? Can we just use the actual beastie boy recordings?
      
      Thank-you fair use!
      [ link to this | view in chronology ]
      - Zonker, 12 May 2014 @ 5:27pm
        
        Re: Re: Re: Re: Fair Use Consideration
        You already know the answer to that, you just want to conflate the issue to make it seem like your argument was sensible when your actually revealing just how weak your argument is.
        
        Parodies of songs have fair use status, yes. That means you can make your own piece of writing, music, etc., that imitates the style of someone or something else in an amusing way. You can use your own parody in your own commercials, but you would have to get Goldieblox's permission to use theirs. You don't need to parody the song if your use falls under any of the other definitions of fair use, such as commentary and criticism. No, you can't just use the actual Beastie Boys recordings in your commercial without permission as that does not meet the requirements for fair use.
        [ link to this | view in chronology ]
      - Pragmatic, 13 May 2014 @ 6:07am
        
        Re: Re: Re: Re: Fair Use Consideration
        You should actually be asking the Isley Brothers as well.
        [ link to this | view in chronology ]
      - The Wanderer (profile), 25 Sep 2014 @ 5:44am
        
        Re: Re: Re: Re: Fair Use Consideration
        Of course it had a fair-use status; either it was fair use, or it wasn't. Therefore, it had either the status of being fair use, or the status of not being fair use - either of which qualifies as a "fair-use status".
        [ link to this | view in chronology ]
    - This comment has been flagged by the community. Click here to show it
      
      jack, 12 May 2014 @ 2:01pm
      
      Re: Re: Re: Fair Use Consideration
      another dick move by gldinblex was to infringe on the work in the first place
      
      Songs don't have fair use status.
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      - Karl (profile), 12 May 2014 @ 9:34pm
        
        Re: Re: Re: Re: Fair Use Consideration
        Songs don't have fair use status.
        
        Dude, what the fuck does that even mean? Of course they do. The 2 Live Crew case was a song, you know.
        
        I know I shouldn't be responding to you, but seriously - you have absolutely no idea what you're talking about.
        [ link to this | view in chronology ]
- Anonymous Coward, 12 May 2014 @ 10:02am
  
  Re: Fair Use Consideration
  In fact, it aught to be that the plaintiff have considered and written out the fair use tests, and how they feel they don't apply of course, in the original suit.
  
  Your suggestion is that the plaintiffs should make the defendants case for them?
  [ link to this | view in chronology ]
  - Anonymous Anonymous Coward, 12 May 2014 @ 10:07am
    
    Re: Re: Fair Use Consideration
    My suggestion is that the complainer think about what they are about to do so that they do not waste the courts and defendants time and money.
    
    Fair use is often not considered at all, and that is a shame.
    
    If fair use was required to be considered, and the four factor test (did I get that right?) is applied beforehand, and considered in the light the court might see it, many suits would never be filed.
    [ link to this | view in chronology ]
    - Anonymous Coward, 12 May 2014 @ 3:28pm
      
      Re: Re: Re: Fair Use Consideration
      I think that fair use is probably considered a little more often than you're giving credit. Plenty of news and comedy shows rely on fair use, and I don't think they have to spend every day fighting court cases.
      
      It could be argued that a serial litigator like Disney would be inclined to sue, for instance, The Colbert Report for recently using a snippet of "Let It Go" from the film Frozen, but as far as I can tell, they didn't go after Comedy Central. Maybe Disney knew they had no case in light of Fair Use, or maybe they just didn't care.
      
      I thought at first that you meant that a plaintiff should present all possible theoretical defenses before the defense even puts forward their justification, which would be madness in the extreme. Defendants come up with rationales for their alleged crimes/torts that no one in their right mind should be able to foresee. Twinkies, for a popular example.
      [ link to this | view in chronology ]
      - Anonymous Anonymous Coward, 12 May 2014 @ 4:25pm
        
        Re: Re: Re: Re: Fair Use Consideration
        IANAL, but I do read widely. My understanding is that if an infringement case goes to trial, they do not get to the fair use portion of consideration until sometime down the road, at a fair expense. Other times, like in this case, the defendant folds, at times for financial reasons, not whether they feel they are wrong and might very well be vindicated in a trial they cannot afford. In that scenario, fair use never gets considered, yet may very well be the correct analysis. How many of those happen? With secret settlements (why are they allowed to be secret?) we may never know.
        [ link to this | view in chronology ]
Anonymous Coward, 12 May 2014 @ 9:46am

There is a good chance that goldieblox was already planning to divert some of its revenue to such a charity. This means both parties keeping up their reputation while not having to spend a lot of money. (Would this count as a victory for the mediator?)
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jackn, 12 May 2014 @ 10:04am

Settling was probably the best thing for Goldiblox (agreed)

but that does not mean it was not fair use (and it doesn't mean it was).

IMO, just being parody is not enough.

Fair use can include commercial uses, but I don't think fair use is applicable here.
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- That Anonymous Coward (profile), 12 May 2014 @ 10:21am
  
  Re:
  and that really is the pity, the courts could have clarified everything... but public opinion trumped pursing the actual law in this area.
  
  Far to often the opinions of copyright holders are taken as being actual law, despite there not being real support in the law as written for their demands. One would think that if this was such an open and shut case, a short trial would have provided the answers and guidance needed in this area so we could stop relying on personal opinions and rely on the law.
  [ link to this | view in chronology ]
  - jack, 12 May 2014 @ 10:40am
    
    Re: Re:
    You don't think there is a law that covers someone using your work in there commercial?
    
    It was an open and shut case. They paid it up, because there are laws that cover someone using your work in there commercial.
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    - jackn, 12 May 2014 @ 10:46am
      
      Re: Re: Re:
      I cant believe how many times today I type THERE instead of their.
      [ link to this | view in chronology ]
    - That Anonymous Coward (profile), 12 May 2014 @ 11:12am
      
      Re: Re: Re:
      So the lyrics were all the same?
      No transformation of it...
      
      If it was such an open and shut case then why settle? The Beasties could have walked away with much more than they got, and struck a blow...
      
      Or was it worrying that a court might rule that it was parody and allowed under the law...
      [ link to this | view in chronology ]
      - This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 12 May 2014 @ 11:45am
        
        Re: Re: Re: Re:
        Yes, this
        
        So the lyrics were all the same?
        No transformation of it...
        
        that's just for babies trying to justify copyright infringment.
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        Heavy Weapons Guy, 12 May 2014 @ 11:52am
        
        Re: Re: Re: Re: Re:
        Entire comment section is babies!
        [ link to this | view in chronology ]
        
        Pragmatic, 13 May 2014 @ 6:09am
        
        Re: Re: Re: Re: Re:
        Explain Weird Al Yankovich. He asks before using but doesn't require a license or pay license fees, yet he makes money off other people's work.
        [ link to this | view in chronology ]
- JMT (profile), 12 May 2014 @ 4:16pm
  
  Re:
  "IMO, just being parody is not enough."
  
  You're right, just being a parody isn't enough. But you seem to be completely ignoring all the other factors that are considered in a fair use determination. You're fixating on the commercial aspect, despite court rulings (including from the Supreme Court) that concluded that commercial works can be fair use. Not only is the GoldieBlox song the textbook definition of parody, it was intended to be educational in nature, has completely different lyrics (transformative use) and has no negative effect on the Beastie Boys work (it can even be argued it's had a positive effect).
  
  "Fair use can include commercial uses, but I don't think fair use is applicable here."
  
  And you've done an extraordinarily piss-poor job of explaining why you think that's the case. You just keep claiming it's "obvious" or "an open and shut case", but haven't presented anything resembling a substantive argument. Instead of parroting your earlier claims, why don't you explain why all of the other factors in their favor shouldn't count?
  [ link to this | view in chronology ]
Anonymous Coward, 12 May 2014 @ 11:46am

I know this is Techdirt, but I'm going to suggest that we look at the evidence anyway:

1. In the settlement agreement, GoldieBlox agreed to pay $1,000,000 to charity for a license from the Beastie Boys to use "Girls" for the period of time that they had used it.

2. GoldieBlox also admitted that they had made a mistake in not asking the Beastie Boys for a license before using "Girls."

3. GoldieBlox also agreed to publicly apologize to the Beastie Boys on their website.

4. GoldieBlox also agreed to publicly promise to not make the same mistake in the future.

5. As per the settlement agreement, the Beastie Boys agreed to do nothing other than grant the license to GoldieBlox.

Given all of that, it's abundantly clear that GoldieBlox realized that it had made a mistake in not getting a license in the first place. If the fair use argument were even remotely as clear as Mike thinks, why would GoldieBlox settle on such terms? Remember, it was GoldieBlox who sued first.

Keep digging that hole, Mike. It's not like anything could hurt your credibility at this time--you don't have any.
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- Michael, 12 May 2014 @ 12:06pm
  
  Re:
  There are a couple of things to consider.
  
  First, when the Beastie Boys counter sued, it was pretty clear that this could turn into a long and costly battle regardless of the outcome. GoldieBlox may have sued for the declaratory judgement simply hoping that the Beastie Boys would simply back down to avoid the legal fight. Just because Goldiblox sued does not mean they were prepared to spend millions of dollars in legal fees.
  
  Second, and probably more importantly, between the Goldiblox filing and the Beastie Boys counter-suit, Goldiblox lost very badly in the court of public opinion. Regardless of whether or not they were on good legal ground, their own customer base decided what they had done was dickish. Once your customers have decided what you did was an asshat move, having a judge tell them it wasn't isn't going to get your sales back.
  [ link to this | view in chronology ]
- Anonymous Anonymous Coward, 12 May 2014 @ 12:11pm
  
  Re:
  So what did you expect from a settlement? There was no decision, so that cannot be it. They did not lose because they were wrong.
  
  Those terms, whether they reflect the truth or not, are small potatoes compared to possibly spending multi-millions of dollars more on a full trial. Even with the egg on the face.
  
  They may have taken the blame as part of 'losing' because they chose to settle, but that does not mean they were wrong. They chose to settle for a million bucks and a bit of humiliation vs. paying several more millions of dollars to make a point, and maybe running into an unreasonable judge.
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  - jackn, 12 May 2014 @ 1:07pm
    
    Re: Re:
    "They did not lose because they were wrong."
    
    so, why did they loose?
    [ link to this | view in chronology ]
    - John Fenderson (profile), 12 May 2014 @ 1:20pm
      
      Re: Re: Re:
      Perhaps to avoid a lengthy, bankrupting, court battle. Don't forget how the courts work in cases like this: the one with the larger warchest wins.
      [ link to this | view in chronology ]
      - jackn, 12 May 2014 @ 1:27pm
        
        Re: Re: Re: Re:
        So you think they are apologizing for their infringment because they don't want to go to court?
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 12 May 2014 @ 1:40pm
        
        Re: Re: Re: Re: Re:
        I don't know what their rationale was, as I'm not anywhere near informed enough on this case to have a reasonable opinion or speculation. However, it's entirely plausible.
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 1:55pm
        
        Re: Re: Re: Re: Re: Re:
        I guess you're probably good with any answer that doesn't reveal the copyright infringement or at least -- downplays it.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 12 May 2014 @ 2:09pm
        
        Re: Re: Re: Re: Re: Re: Re:
        You're a terrible guesser.
        [ link to this | view in chronology ]
        
        Anonymous Anonymous Coward, 12 May 2014 @ 1:58pm
        
        Re: Re: Re: Re: Re:
        Yes, that is what some/many of us think. But as John said, we don't know their actual rationalization. Only their hairdressers know for sure.
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 2:02pm
        
        Re: Re: Re: Re: Re: Re:
        I guess you're right, the only thing we all know is this was not fair use.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 12 May 2014 @ 2:10pm
        
        Re: Re: Re: Re: Re: Re: Re:
        How do we know this?
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 2:13pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        GoldieBlox also admitted that they had made a mistake in not asking the Beastie Boys for a license before using "Girls."
        
        GoldieBlox also agreed to publicly apologize to the Beastie Boys on their website.
        
        GoldieBlox also agreed to publicly promise to not make the same mistake in the future.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 12 May 2014 @ 2:18pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        None of which indicates whether or not it was "fair use".
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 2:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Sorry dude, your team lost this one.
        
        There is nothing left to argue.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 12 May 2014 @ 2:34pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Your rage is blinding you. I am not on any "team" on this at all, and GoldieBlox' settlement statements don't address the fair use question either way. You clearly think that they do. What is your reasoning?
        [ link to this | view in chronology ]
        
        jackn, 12 May 2014 @ 2:40pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        There is nothing left to argue. you lost
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 12 May 2014 @ 2:46pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Funny how I can "lose" when I haven't argued or made any assertions whatsoever. I sense that you're feeling less than sure of your own position.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        jackn, 12 May 2014 @ 3:48pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        you're a terrible senser.
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- Anonymous Coward, 12 May 2014 @ 12:51pm
  
  Response to: Anonymous Coward on May 12th, 2014 @ 11:46am
  Doesn't seem like goldieblox even thought this was fair use. Thanks for the journalistic post on this event. We kinda got shorted on the original story.
  
  well, I guess we can all now agree, NOT fair use.
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- jackn, 12 May 2014 @ 1:06pm
  
  Re:
  Thanks for the journalistic take on the story. We didn't get that from the original article.
  
  Guess that seals it, NOT FAIR USE even as determined by the infringer.
  
  Thanks again
  [ link to this | view in chronology ]
- Mike Masnick (profile), 12 May 2014 @ 4:07pm
  
  Re:
  I know this is Techdirt, but I'm going to suggest that we look at the evidence anyway:
  
  You could make points without insulting and we could have had an interesting and informative discussion. Not sure why you decide to start with an ad hom. Weakens any belief that you're here to have an informed discussion (which is further supported by the rest of your comment, which doesn't appear to understand the legal system).
  
  Given all of that, it's abundantly clear that GoldieBlox realized that it had made a mistake in not getting a license in the first place. If the fair use argument were even remotely as clear as Mike thinks, why would GoldieBlox settle on such terms? Remember, it was GoldieBlox who sued first.
  
  It's not at all clear from the agreement that Goldieblox was giving up its fair use argument. There are many, many reasons to settle and make such an agreement. Here are just two: (1) it's cheaper/faster than dealing with a full lawsuit (even if you were to win). (2) Goldieblox realized that, no matter what the legal status, they had lost the PR battle, and thus getting out of the lawsuit quickly made sense.
  
  Once you do that, it's all a negotiation. And the "apologies" and admissions are just the things that are negotiated. They have little meaning in real life over how Goldieblox actually felt, especially concerning the fair use status.
  
  Similarly, there are many legitimate reasons for Goldieblox to have filed for declaratory judgment first. In copyright and patent cases, filing for a DJ following a demand letter is actually a fairly common move -- often done to secure a better jurisdiction. The "remember, it was Goldieblox who sued first" is not meaningful. They "sued" for a DJ, not for any money or anything. Asking for a DJ just clarifies the legal situation so you don't have it hanging over your head -- which in Goldieblox's position probably made a fair amount of sense, prior to the PR side backfiring.
  
  So, your "facts" have little to do with the overall question of whether it is or is not fair use. And, it would be nice to have a rational debate about that, but given your focus on ad homs, I'm not sure that's what you're actually interested in.
  [ link to this | view in chronology ]
  - jackn, 12 May 2014 @ 5:20pm
    
    Re: Re:
    "It's not at all clear from the agreement that Goldieblox was giving up its fair use argument. "
    
    To me, it is the clearest message in the wording, without actually mentioning fair use.
    
    "There are many, many reasons to settle and make such an agreement. Here are just "....
    
    I guess I see where you're going, they may have opted for the easy way out at this point. and they got the license.
    
    "So, your "facts" have little to do with the overall question of whether it is or is not fair use. And, it would be nice to have a rational debate about that, but given your focus on ad homs, I'm not sure that's what you're actually interested in."
    
    Its techdirt again! circular logic for everyone
    [ link to this | view in chronology ]
    - Anonymous Coward, 13 May 2014 @ 2:31am
      
      Re: Re: Re:
      "It's not at all clear from the agreement that Goldieblox was giving up its fair use argument. "
      
      To me, it is the clearest message in the wording, without actually mentioning fair use.
      
      Do you realise that you have failed to clarify this conclusion to anyone? I can see that it's obvious to you, but would you mind explaining it to the rest of us?
      [ link to this | view in chronology ]
- Zonker, 12 May 2014 @ 6:26pm
  
  Re:
  1. The agreement was actually that Goldieblox donate 1% of their revenue to the charity *until they reach $1,000,000*. It may take them a while to make the $100,000,000 necessary to reach that million dollar total.
  
  2. Stating as a settlement condition that Goldieblox made a mistake does not change the legal grounds they had in their favor. At most it is waiving any valid legal claims Goldieblox may have had.
  
  3-4. Again such apologies and promises were not a legal requirement or ruling, it was a negotiated settlement. It appears that this was preferable to any PR flack or legal costs that Goldieblox or the Beastie Boys would face by continuing the fight.
  
  5. This is actually most problematic for the Beastie Boys. Why? Because by licensing the commercial use of "Girls" to Goldieblox for even that one week actually violates the wishes of their deceased band member that their music never be licensed for use in commercials. Yes, the Beastie Boys agreed to violate their "no commercial use" policy on their music by allowing Goldieblox to license it, however briefly and in retrospect.
  
  I understand how much hatred people have developed for commercial advertisements (unless it's halftime for the "Big Game" on TV) and how this must be coloring the perception of right vs. wrong here, but that does not by itself make something not fair use. You don't have to like advertisements to support fair use rights, but you should support fair use rights for all to preserve your own.
  [ link to this | view in chronology ]
- The Wanderer (profile), 25 Sep 2014 @ 5:48am
  
  Re:
  This could almost have been a reasonable comment, if it hadn't been for the "keep digging that hole" paragraph. As it is, you get a report vote.
  [ link to this | view in chronology ]
John85851 (profile), 12 May 2014 @ 12:06pm

Law versus emotion
As usual, companies have to fight the "court of public opinion": even if they're 100% correct (as in a case of fair use), the public might complain. Then, in order to stop any drop in sales, the company gives in and settles.

Like you said, what does anyone's will have to do with fair use or parody? Nothing, but it makes a stronger emotional case against GoldieBlox.
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RonKaminsky (profile), 12 May 2014 @ 12:45pm

Sorry, no
> which was online for just 10 days

Uhm, I totally agree with the fair use thing, but Mike should be the absolutely last person to be pulling out a weak argument that virally popular things actually disappear from the Internet once they've been "taken down".
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Anonymous Coward, 12 May 2014 @ 1:30pm

simply changing the lyrics to a catchy song is a LYRIC change and people have to pay for that license. this article may give some insight...

http://www.askamusiclawyer.com/archive/can-i-use-parody-songs-in-my-ad-campaign.html
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This comment has been flagged by the community. Click here to show it

jackn, 12 May 2014 @ 1:30pm

Hey lets turn it around for the freetards.

Can one of you guys give an example of something that you would NOT consider fair use? I am just curious where it ends with you guys.
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- John Fenderson (profile), 12 May 2014 @ 2:30pm
  
  Re:
  I was going to ignore this obvious troll question, but in case there's someone new reading who might actually believe your mistaken characterizations, I'll give a quick answer. There are tons of uses that would be infringing and not fair use. For example, copying the song and distributing it without permission and not for any of the uses that the law recognizes as fair use (commentary, education, etc.).
  [ link to this | view in chronology ]
- Mike Masnick (profile), 12 May 2014 @ 3:56pm
  
  Re:
  Hey lets turn it around for the freetards.
  
  What do you consider to be a "freetard" anyway?
  
  Can one of you guys give an example of something that you would NOT consider fair use? I am just curious where it ends with you guys.
  
  Lots of stuff is clearly not fair use. Things that are infringing. In fact, contrary to your claims that we believe everything is fair use, we've mocked folks for claiming fair use where there is none: Hey lets turn it around for the freetards.
  
  Here's one example: http://www.techdirt.com/articles/20140210/11274926167/whether-not-dumb-starbucks-is-pr-stunt-joke-re al-its-parody-claims-are-pretty-questionable.shtml
  
  We also noted that Joel Tenenbaum's fair use argument over his downloading was ridiculous as well: https://www.techdirt.com/articles/20090727/1914495676.shtml
  
  So, no, contrary to your false claims, we do not argue that everything is fair use.
  
  This case, however, I stand by the fair use claim. It seems like a clear cut fair use argument to me.
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  - jackn, 12 May 2014 @ 4:07pm
    
    Re: Re:
    Thanks for the reply. I was quite shocked by your article. Not the content, the conflict, or the result, just your words.
    
    Actually, it looks like you removed the most offending line from your article. I am glad its gone, I was thinking that this place might become the FOX NEWs of IP blogs.
    
    But it does seem that you think PARODY = FAIR USE. I don't agree with that assessment.
    
    What is the key part of this situation that makes you want to say fair use, the parody? is there something I am missing.
    [ link to this | view in chronology ]
    - JMT (profile), 12 May 2014 @ 4:25pm
      
      Re: Re: Re:
      "But it does seem that you think PARODY = FAIR USE."
      
      Only if you haven't actually read what TD have written on this topic. Their reasoning has never been that simplistic or incomplete.
      
      "What is the key part of this situation that makes you want to say fair use, the parody?"
      
      Clear parody, educational message, transformative use, and no effect on the copyrighted work.
      
      "is there something I am missing."
      
      Clearly...
      [ link to this | view in chronology ]
      - jack, 12 May 2014 @ 4:37pm
        
        Re: Re: Re: Re:
        Actually, I seem to be in the right, so I guess it is "you" guys that are missing something. Actually, I think 'yall' got a little extra!
        
        "Clear parody,...."
        
        Everyone has agreed, that is not a valid argument.
        
        ", educational message, "
        
        ya, right..
        
        " transformative use,"
        OK, whatever
        
        "and no effect on the copyrighted work."
        
        that is wrong.
        
        Please, do go on, at length....
        [ link to this | view in chronology ]
        
        JMT (profile), 12 May 2014 @ 6:33pm
        
        Re: Re: Re: Re: Re:
        So they lyrics were not intended to educate? Have you even listened to the song? I suspect not...
        
        You obviously have no idea what transformative means in this context. Every single word in the lyrics was changed bar one. The message of the lyrics is the polar opposite of the original lyrical message. Please explain how that's not transformative.
        
        And then explain how exactly this affects the original work.
        
        I accused you above of making no actual argument at all, just repeating "I'm right, you're wrong". I see you're sticking with this tactic. Can't you do any better?
        [ link to this | view in chronology ]
        
        The Wanderer (profile), 25 Sep 2014 @ 5:52am
        
        Re: Re: Re: Re: Re:
        Actually, people have agreed that "clear parody" is not a sufficient argument - not that it's not a valid one. It's not enough by itself, but it can be an important component of a larger, multi-part argument.
        [ link to this | view in chronology ]
    - Mike Masnick (profile), 12 May 2014 @ 4:32pm
      
      Re: Re: Re:
      Actually, it looks like you removed the most offending line from your article. I am glad its gone, I was thinking that this place might become the FOX NEWs of IP blogs.
      
      I haven't made any changes. Not sure what you're talking about?
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      - Anonymous Coward, 12 May 2014 @ 4:40pm
        
        Re: Re: Re: Re:
        your correct. Its still there. Its not as powerful as my first reading of it.
        
        its just this
        
        "a clear fair use,"
        
        that is objectionable. To me, it is "Clearly, not a fair use."
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        Greevar (profile), 12 May 2014 @ 6:37pm
        
        Re: Re: Re: Re: Re:
        That is 100%, totally, and completely your, biased, opinion. Just because you have a gut feeling that it isn't fair use, it does not make it so. Your opinion does not equate to what the law says it is.
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jackn, 12 May 2014 @ 2:39pm

You might have noticed that generalizations when dealing with fair use don't go over well here.

An example is real with specific details.
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- Pragmatic, 13 May 2014 @ 6:12am
  
  Re:
  Here you go, Sparky.
  
  http://en.wikipedia.org/wiki/Parody#Copyright_issues
  
  Read and heed.
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Anonymous Coward, 13 May 2014 @ 8:38pm

average_joe just hates it when due process is enforced.
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LAB (profile), 14 May 2014 @ 3:15pm

This might very well have been fair use. How this "seems like an unfortunate result," doesn't make that much sense to me. What is the purpose of advertisement? To convince customers to buy your product. Was this ad doing that? Quite the opposite. I doesn't matter if it was fair use or not. The ad they spent $$ on was doing the opposite of its intended purpose. The company wants to further science ed for girls, and what are they doing instead of paying the Beasties? Donating $$ for science ed for girls. In what world is this a bad outcome? Most suits settle regardless if you are "right" or "wrong"
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- JMT (profile), 14 May 2014 @ 6:27pm
  
  Re:
  "What is the purpose of advertisement? To convince customers to buy your product. Was this ad doing that? Quite the opposite. I doesn't matter if it was fair use or not. The ad they spent $$ on was doing the opposite of its intended purpose."
  
  Can you explain why you think that? I can't see how this campaign could have a negative affect on their sales. The people who were getting so pissy about it are not exactly the products' target market.
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LAB (profile), 15 May 2014 @ 7:13am

"The people who were getting so pissy about it are not exactly the products' target market."

It was not the ad itself more the reaction to it. Adults buy toys for children. So the target market is truly adults. The company uses a Beastie boys song but does not attempt to license it(I'm not saying they legally need to presuming it's fair use). The they sue the Beasties first. Then the Beasties say they are all for what GoldiBlox stands for but one of the dead members has, in his will, not to use their songs for commercials. Public perception of the company? They stole the song, didn't try to get permission to use it, and would ignore the wishes of a dead group member all for a commercial for kids toys.......terrible PR and not really the image you want for a toy maker. Tag line ...Just another big bad company that does what it wants......
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- JMT (profile), 15 May 2014 @ 1:41pm
  
  Re:
  "The they sue the Beasties first."
  
  As has been explained many, many times, they sued for declaratory judgment, not money. You're trying very hard to paint an inaccurate picture. Under threat of possible legal action, they simply asked a court to decide if they were right or wrong.
  
  "They stole the song..."
  
  Again with the simplistic and inaccurate claims. It's bad enough when you claim infringement is theft, but to make the same claim about parody just makes you look silly and ignorant of the law.
  
  "...terrible PR and not really the image you want for a toy maker."
  
  As an engineer with two young daughters, I thought the marketing approach they took was fantastic. Their message is a million times more useful to society than the message from the original song. I'd rather my girls be influenced by Goldieblox than any musicians getting a bit precious about a 26 year old song.
  
  "Just another big bad company that does what it wants..."
  
  You think these guys are "big" and "bad"? I don't think you have any idea who you're talking about.
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LAB (profile), 15 May 2014 @ 5:31pm

The they sue the Beasties first."

"As has been explained many, many times, they sued for declaratory judgment"

Who took legal action first? Lawyers must be hired, lawyer costs money. I am well aware of what a declaratory judgment is, but is the public? No

"They stole the song..."

Listen, I know we disagree a lot but please read what I wrote. I didn't say I thought this, I said that was public perception. you asked me to explain how the ad campaign could hurt them that's all I did.

"It's bad enough when you claim infringement is theft"

Theft: the wrongful taking and carrying away of the personal goods or property of another.

Ask yourself these questions. Is it against the law? Does it belong to me? Does it belong to someone else? Did they give it to me as a gift? Did I take it? You can call it whatever you want. All infringement is not theft. Some is. Piracy would seem to satisfy the above definition. Some people said they stole the beastie boys song. That is not my view.

Did you not see where I said they didn't need permission if it was fair use? This is what I wrote:

"This might very well have been fair uses."

"I thought the marketing approach they took was fantastic. Their message is a million times more useful to society than the message from the original song."

The Beastie boys agreed with you and so do I, that's why I said I didn't see why the outcome of the case was all that bad. Instead of the group getting the money, its going to charity. Why is this an unfortunate outcome as the author stated?

"Just another big bad company that does what it wants..."

Again, public perception. I don't think this. You asked why I thought the ad campaign could hurt sales and I told you how some people could see it. What is the point of advertising? To get people to buy your product and to make the company look good. When they started getting bad press for using a song, it made them look like the bad company and made the Beastie Boys into two guys trying to honor the wishes of their dead band member, who died from cancer, and not some guys just trying to get paid.(public perception).
That is how it could have a negative effect on sales
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- JMT (profile), 16 May 2014 @ 7:11pm
  
  Re:
  "Who took legal action first? Lawyers must be hired, lawyer costs money."
  
  So what? It means practically nothing. The only reason you keep bringing it up is to make them look bad.
  
  "I am well aware of what a declaratory judgment is, but is the public? No"
  
  Which is exactly why people like you keep screaming "They sued first!", instead of pointing out that it's a perfectly common and sensible legal strategy. The negative portrayal works for you, because you don't like what they did.
  
  "Some people said they stole the beastie boys song. That is not my view."
  
  You're not very convincing on that point, but even that's not relevant when the fair use argument is so strong. If it's fair use it's not even infringement, let alone 'theft'.
  
  "Why is this an unfortunate outcome as the author stated?"
  
  A nice as it is that some some money will go to charity, it's being done under very unfortunate circumstances. Fair use is important to the growth and dissemination of art and culture, so having a strong legal ruling that strengthens the protection of those engaging in fair use and dissuades copyright owners from attacking them would be a much better result for society in the long run.
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LAB (profile), 17 May 2014 @ 1:54pm

"The only reason you keep bringing it up is to make them look bad."

They didn't try to license the song first. If they had, this would have been avoided. They would have learned of the dead group member's will stating "no commercial use." They wouldn't have had to spend money on lawyers to file for Declaratory Judgment. What is fair about forcing the Beastie Boys to fight a legal battle to honor the wishes of their dead group member. They do look bad. Sorry many people thought, and still think, the wishes of a dead man are important.

"Which is exactly why people like you keep screaming "They sued first!", instead of pointing out that it's a perfectly common and sensible legal strategy."

People like me.... screaming....sure...You file for declaratory judgment when you know you are going to get sued. That is what a lawyer advises when asked "what should we do? we are pretty sure we are going to get sued." If they had even communicated with the group the whole nonsense would have been avoided.

"You're not very convincing on that point."

Sorry you feel what I right is not indicative of what I believe.

"so having a strong legal ruling that strengthens the protection of those engaging in fair use and dissuades copyright owners from attacking them would be a much better result for society in the long run."

You would rather they have a long protracted legal action instead of a settlement and money going to charity? Just to prove it's fair use? Quite telling. I guess this IS an unfortunate outcome. The Beastie boys liked the use of the song. They continued legal action to honor MCA's will. In almost every infringement case the defense of fair use is used. The law is very clear on its definition. There is no need to strengthen it. It is to be used on a case by case basis. The Beastie Boys would have sued regardless. And if I was in a group, and one of us died, and it was in his will not to use our music in commercials....I would sue too. Even if we lost and it was fair use, I would have been respectful of a passed group member's wishes. I suppose if the roles were reversed and you were in the group, you would say" I know what his will says but we shouldn't fight it, it's fair use.....
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