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

from the fair-use-gets-pricey dept

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.

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

Key Fair Use Case Settles, Rather Than Continue (And, No, It's Not The Beastie Boys)

from the settlement-day dept

Yesterday was apparently "settlement day" for high profile copyright cases. Lots of attention was paid to Google and Viacom finally settling the ridiculous seven year battle in which Viacom tried to fight the future and reinterpret the DMCA... all for naught. And then, you may have seen that the Beastie Boys and Goldieblox settled their high profile lawsuit as well. However, that was almost a foregone conclusion. There was no way that lawsuit was going to move forward.

However, a much more important copyright case, also settled. The legal fight concerning fair use between photographer Patrick Cariou and famed artist Richard Prince also happened to settle on the very same day. We'd been covering that important fair use case, which really highlighted the importance of the "transformative" step in determining fair use. Prince had taken photographs of Cariou and created "collage paintings" in which he added to the photographs. While a lower court had said this was not just infringing, but that Prince's artwork (valued at millions of dollars) needed to be destroyed, an appeals court, thankfully, mostly overturned the decision, declaring that most of the works in question were fair use, and leaving the lower court to re-examine whether a few more were or were not transformative enough to be fair use.

As with the YouTube lawsuit, the settlement means that the final precedent set by this case is not nearly as clear-cut as it could be, but (again like the YouTube case), on the whole, the state of the case when it ended is generally useful. With YouTube, while the appeals ruling could have been more definitive concerning the DMCA's safe harbors, it was generally supportive of them and completely rejected Viacom's wacky theories. Similarly, in this case, while the appeals court didn't wholly support fair use for all of Prince's works, at the very least it did find most of them to be fair use, and (unlike the district court) recognized that immediately jumping to a claim of "infringement" and ordering the destruction of artwork that the art world clearly valued quite a lot was a dangerous step to take. While some might argue that having an eventual Supreme Court ruling in either case helps establish a clearer set of rules, given the unpredictable nature of the Supreme Court on copyright issues, the settlement in both of these cases, when the results were generally positive, may be the best thing for the state of copyright law currently.

Filed Under: appropriation art, beastie boys, copyright, fair use, patrick cariou, richard prince, settlements
Companies: goldieblox

Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit

from the that's-unfortunate dept

Thought the GoldieBlox vs Beastie Boys fight was over? Nope. While Goldieblox had posted a blog post effectively conceding that it would drop the lawsuit and stop using the song, it appears that they made no move to actually drop the lawsuit (and given how quickly they filed the original lawsuit, it would seem that they could have dismissed it equally quickly). So, now the Beastie Boys have filed their response and countersued on a variety of theories.

Now, I know that many people who initially sided with Goldieblox "switched sides," arguing that this was all a publicity stunt by the company. I think there are two separate issues: whether you like this as a publicity stunt and whether or not the use of the song was infringing. Unfortunately, many people are conflating the two. I agree that it's crass and quite lame to use the legal system as a PR tool, and it certainly doesn't reflect positively on Goldieblox as a company. It's pretty clear they were itching for a legal fight and probably pulled the trigger on filing for declaratory judgment too quickly (though, contrary to the claims of some, filing for declaratory judgment when someone suggests you infringed on their rights is a fairly common practice, and there are plenty of good reasons to do so). But I think that's a separate issue from whether or not the use of the song was infringing -- and it's very important to keep the two issues distinct in thinking about the legal issues here.

Given a variety of factors it's not at all surprising that the Beastie Boys have countersued. They were clearly angry about the use of the song (since they have made it explicit they don't like their music used in advertising) and about how the whole situation went down with the declaratory judgment request being filed so quickly, after their lawyers had sent a basic inquiry. That said, it's still disappointing to see the Beastie Boys decide to ramp up the legal effort here, and it still seems like their case is not a strong one. We've already discussed how the Goldieblox use can be fair use, and that there are multiple legal precedents that support that position. The Beastie Boys counter that this is not fair use at all. If this doesn't get settled (and I'd bet good money that it does get settled), a ton of arguments will get thrown back and forth on this point. I can make what I believe is a very strong argument that this is clearly fair use, while others can counter with arguments why it's not. As with so many fair use cases, unfortunately, the end result is often the emotional decision a judge makes about whether it "feels" like fair use, and then works backwards to make the fair use factors fit the preconceived idea. It's a bit of a crapshoot, even as I think it should clearly be fair use.

The Beastie Boys don't stop there however, adding trademark infringement, unfair competition and publicity rights claims to their counterattack. Frankly, all of these seem incredibly weak. It is true that the original Goldieblox video did put "The Beastie Boys" in the title of the video, which some have suggested may have lead to confusion over whether or not the Beastie Boys supported the campaign. This is mainly the basis for most of these additional claims, but it seems rather weak. There's no denying that the song was a take-off on The Beastie Boys' song "Girls." The question is whether or not it was infringing and whether that take-off is a parody. Stating accurately what the take-off is based on isn't trademark infringement, unfair competition or a violation of the band's publicity rights, as it didn't suggest support or endorsement by the band. It just, accurately, noted that the song was a Beastie Boys song. If the use of the song was fair use, then it's perfectly reasonable, as well, to highlight where the song was from.

Two other interesting points from the lawsuit. First, the Beastie Boys highlight that Goldieblox had created ads doing similar take-off parodies (though, obviously they don't call it that) on other popular songs. But, again, if they are fair use then that doesn't matter. Making the case that this is a pattern of activity only makes a difference if it's not fair use. Second, the Beastie Boys are not messing around when it comes to the remedies sought. Not only do they want an injunction, but they're also asking for an "accounting" of how much Goldieblox made as a result of this campaign, and using that to argue for actual damages from Goldieblox.

We talk a lot about "statutory damages" in copyright law, because that's what most copyright holders seek, in part because they claim it would be too difficult to figure out "actual damages," but mostly because the statutory damages numbers are insanely high (up to $150,000 per infringement). Here, however, it appears that the Beastie Boys and their lawyers smell blood in the water, and recognize that if they can convince the court that the money Goldieblox made from people buying its products after seeing the ad are a form of "damage" to the Beastie Boys, they could potentially collect significantly more money -- all of which they are arguing should be handed over to the band (while reserving the right to go for statutory damages if the end result of that is more):

For an award of the Beastie Boys Parties’ actual damages and lost profits they have sustained as a result of GoldieBlox’s unlawful acts of copyright infringement and to recover from GoldieBlox the gains, profits, and advantages GoldieBlox has obtained as a result of the wrongful conduct alleged herein, in an amount to be determined at trial, or, at their election, an award of statutory damages...

This seems fairly extreme again. Even if we accept that this was a giant publicity stunt, and even if it drove a bunch of sales, to argue that all of the gains and profits belong to the band is pretty crazy. People didn't buy the toys because of the music. It may have helped draw attention to the toys, but it was the toys themselves that people were buying (and let's leave out the separate debate over whether or not Goldieblox's toys are actually any good -- that's an irrelevant tangent here).

In the end, it can reasonably be argued that Goldieblox poked the Beastie Boys with a legal stick as part of a publicity campaign, which is increasingly looking like a major strategic miscalculation (perhaps both on the PR side, since there's been so much backlash, and now on the legal side). The Beastie Boys have now hit back hard. This isn't surprising.

Still, even if you think that Goldieblox's actions are reprehensible from the stunt side, if you believe in the importance of fair use, it's disappointing to see the Beastie Boys make this move. As we've noted, the band itself relied on fair use for quite a bit of their own work, and a ruling in this case in their favor would tragically reduce fair use and limit the ability to parody, something that would truly be a loss for culture and society.

Filed Under: beastie boys, copyright, fair use, publicity rights, publicity stunt, trademark
Companies: goldieblox

GoldieBlox Pulls Beastie Boys Video, Promises To Drop Legal Dispute

from the the-inevitable-end dept

This isn't a huge surprise, but given all the publicity, Goldieblox has agreed to pull down the video that included the Beastie Boys' song "Girls," with an open letter to the remaining members of the band, saying that while they believe that their use was fair use, they wanted to respect the wishes of Adam Yauch and his strong desire not to see the band's music used in commercials.

Dear Adam and Mike,

We don’t want to fight with you. We love you and we are actually huge fans.

When we made our parody version of your song, ‘Girls’, we did it with the best of intentions. We wanted to take a song we weren’t too proud of, and transform it into a powerful anthem for girls. Over the past week, parents have sent us pictures and videos of their kids singing the new lyrics with pride, building their own Rube Goldberg machines in their living rooms and declaring an interest in engineering. It’s been incredible to watch.

Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves. We did so sincerely hoping we could come to a peaceful settlement with you.

We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising. Although we believe our parody video falls under fair use, we would like to respect his wishes and yours.

Since actions speak louder than words, we have already removed the song from our video. In addition, we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team.

We don’t want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.

Sincerely,

Debbie + Team GoldieBlox

A very strong argument can be made that the company should have communicated directly with the Beastie Boys and their lawyers prior to filing for declaratory judgment. But what many people who are commenting on this, who have little to no understanding of copyright law, don't realize, is that filing for a declaratory judgment when threatened is both very standard and quite sensible. As the copyright maximalists are fond of reminding us, you often can't know for sure if something is fair use until a judge says so. Frankly, it shouldn't be this way. Fair use shouldn't require a court to decide, but copyright maximalists have made it so. And, given that, if someone threatens you, the best way to make it clear that it's fair use is to quickly get a judge to weigh in. That's exactly what Goldieblox did, and it's pretty standard in cases where someone is accused of copyright infringement.

As we've noted in multiple posts, there's also a very strong argument that this is absolutely fair use. However, that doesn't mean that Goldieblox needs to continue the fight. Pulling the video and the lawsuit may remove what would have been a very interesting copyright/fair use case, but as we ourselves have pointed out many times, just because you can go legal, it doesn't always make sense to do so. The question of whether or not the Beastie Boys want their music in ads may be relevant to whether or not the original effort was "respectful," but is not an issue in the fair use equation.

Which brings me to one final point on this. Many people have been arguing that "respect" is all about "permission." This is a very dangerous view. As we've pointed out over and over again, permission-based culture is no culture at all. Creating art is about breaking barriers, building on those who came before and doing it in new and unique ways. The Beastie Boys themselves clearly recognized and did this themselves many, many times. Often, getting permission is impossible, and focusing on needing permission crushes fair use in dangerous ways. A healthy fair use doctrine has resulted in tremendous art, culture and innovation. Demanding permission in all cases would be stifling. It also leads to a thicket problem, that tends to benefit the gatekeepers of culture, rather than the actual creators and artists, many of whom rely strongly on fair use themselves.

As Mathew Ingram notes, fair use is something worth fighting for, and while Goldieblox made the reasonable decision not to continue this fight, we should be extremely wary of attempts to shut down and close off fair use for the sake of both our culture and innovation.

Filed Under: beastie boys, copyright, fair use, permission
Companies: goldieblox

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:

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 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:

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.

Filed Under: advertisements, annie liebowitz, beastie boys, copyright, demi moore, fair use, leslie nielsen, naked gun, parody
Companies: goldieblox

Goldieblox May Be Right About Fair Use, But Wrong About Claiming You Need A License To Link To Its Site

from the hypocrites dept

We've already written about the dispute between Goldieblox and the Beastie Boys not once, but twice, coming down strongly on the side of Goldieblox in this dispute. However, as noted in Jeff Roberts' coverage of the case over at Gigaom, it appears that Goldieblox might want to take a closer look at their own terms of service, which makes some absolutely ridiculous and laughable claims about how you can't link to their website: If you can't see that, the key part says:

LINKS BY YOU TO THE WEBSITE. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to GoldieBlox, (b) the links and the content on your website do not suggest any affiliation with GoldieBlox or cause any other confusion, and (c) the links and the content on your website do not portray GoldieBlox or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to GoldieBlox. GoldieBlox reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

Except, there's no legal basis for this whatsoever. I can link to them here, as I have, and say things that they disagree with, and they can scream and holler about them "revoking" their license to link and it would mean absolutely nothing. Because just as you don't need a license to create a parody song, you don't need a license to link to someone's website.

Overly demanding a license or permission for things is a big problem. Goldieblox should be supported for making it clear you don't need a license for parody, but it should be called out for pretending a license is needed for linking.

Filed Under: copyright, fair use, linking, terms of use
Companies: goldieblox

Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care

from the that's-not-how-it-works dept

On Friday, we wrote about the declaratory judgment lawsuit that toy company GoldieBlox filed against Universal Music, the Beastie Boys and a few related parties, arguing that their commercial, which parodies the BB's song "Girls" is fair use and not copyright infringement, following what they claimed was a threat from the band's lawyers. Over the weekend, some in the press started quoting a representative of the Beastie Boys who said no such threat ever happened:

A representative for the Beastie Boys explained: "There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys."

Today, the Beastie Boys, clearly in damage control mode, sent an open letter to the company:

Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.

Now, it is true that some in the press have mistakenly stated that the Beastie Boys sued GoldieBlox, and that's clearly not the case. GoldieBlox filed for declaratory judgment, which is a fairly standard move after someone claims that you violated their rights. It's not a lawsuit seeking money -- just to declare that the use is fair use. While the Beastie Boys say they made no threat or demand, the lawsuit notes that their letter (which still has not been revealed in full) made a direct claim that the video was copyright infringement, and also that this was a "big problem" that has a "very significant impact."

Many people in our comments and elsewhere who have defended the Beastie Boys have pointed out that the band does not allow its music to be used in advertisements. And, in fact, that in Adam Yauch's will, it explicitly stated that none of their music was ever to be used in advertising. And, from the Beastie Boys' open letter, it appears that was their main concern.

But, here's the thing: as principled as Yauch was about this, and as admirable as it may be for him and the band to not want their music appearing in advertisements that does not matter under the law. If the use is considered fair use, then it can be used. Period. There is no clause in fair use law that says "except if someone's will says otherwise." The very point of fair use is that you don't need permission and you don't need a license.

So the fact that they don't like their work in advertisements is entirely meaningless to the legal question. In fact, if anything it may harm the claim that it's infringement. I've spoken to a bunch of copyright lawyers about this, and almost all of them agree that this is likely fair use (with some arguing that it's a totally clear-cut case). Some have argued that because it's an advertisement for a company that precludes any possibility of fair use, but that's absolutely not true. Plenty of commercial efforts have been considered fair use, and, in fact, many of the folks who rely the most on fair use are large media companies who are using things in a commercial context. Furthermore, the Supreme Court explicitly stated in Campbell v. Acuff-Rose Music, Inc. that commercial use can be fair use, noting that if commercial use made things automatic infringement, it would destroy fair use:

If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases...

And later, in overturning the appeals court ruling that went the other way:

It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use.

Both of those clearly apply here as well. Some have pointed out that GoldieBlox didn't "declare" this video a parody. But, once again, in the very same case, the Supreme Court notes you don't need to do that:

We note in passing that 2 Live Crew need not label their whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).

That's not to say the commercial nature of this venture won't play into any analysis. It is certainly one factor in many. However, as Ken White points out, if this weren't a commercial, there's absolutely no doubt that it's fair use, as it hits on pretty much every other factor. Furthermore, the very fact that the Beastie Boys refuse to allow their songs in ads actually works against them because they can't legitimately argue that they lost money because of this, since they've outright declared that they won't license music for such things. So no money could be lost.

And, in fact, this is exactly what fair use is for: to enable people to use music, without permission, in situations that create a very different kind of work where the copyright holder would almost certainly not grant permission.

Filed Under: adam yauch, advertising, beastie boys, copyright, fair use, parody, permission
Companies: goldieblox, universal music

Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement

from the this-is-unfortunate dept

Well, this is rather disappointing. The Beastie Boys relied significantly on fair use for a lot of their music. The famed "Paul's Boutique" album, which did license some samples, is still involved in lawsuits, and a recent look at the insane cost of sampling has suggested that with today's licensing rates, there's simply no way to legally produce an album like that today. Given that, you'd think and hope that the Beastie Boys themselves wouldn't go around acting like copyright bullies. And, historically, they've mostly avoided doing so. That's why it's so disappointing to see that they've threatened the toy company GoldieBlox for the video it produced, which parodies the Beaties' classic song Girls (which samples a few songs itself), by changing the lyrics in a way that clearly comments on the misogynistic lyrics of the original. Here's the video, which went super viral earlier this week: The whole point is to mock the message of the original song, with its famous refrain: "Girls - to do the dishes; Girls - to clean up my room; Girls - to do the laundry; Girls - and in the bathroom; Girls - that's all I really want is girls." The new one switches it to: Girls - to build the spaceship; Girls - to code the new app; Girls - to grow up knowing; That they can engineer that; Girls - That’s all we really need is Girls." The point is pretty clear. Parody the original song to highlight how ridiculous that stereotypical image of girls is -- and, of course, highlight how the kinds of toys that GoldieBlox makes can be useful in learning.

Unfortunately, however, the Beastie Boys, along with Universal Music, sent a letter to GoldieBlox threatening a copyright infringement claim. GoldieBlox decided to strike first, and has filed for a declaratory judgment in California -- a somewhat risky move. GoldieBlox clearly makes the case that what they're doing is parody and protected fair use, but courts are notoriously fickle and arbitrary in making fair use decisions.

In the lyrics of the Beastie Boys’ song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. They are also shown engaging in activities far beyond what the Beastie Boys song would permit. GoldieBlox created its parody video specifically to comment on the Beastie Boys song, and to further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math. The GoldieBlox Girls Parody Video has gone viral on the Internet, and has been recognized by the press and the public as a parody and criticism of the original song.

While GoldieBlox was clearly using this for commercial purposes, plenty of commercial activity has been seen as fair use. Further, it seems likely that the viral success of the video almost certainly drove renewed attention (and therefore revenue) to the original Beastie Boys song. This should play into the fair use analysis, but unfortunately many courts focus solely on the "potential licensing revenue" that could have been earned, and ignore the positive impact on the original of a parody. Hopefully, a court will recognize that this is fair use but, again, fair use decisions are almost entirely arbitrary at times.

Either way, it's really disappointing to see the Beastie Boys choose to go down this path. For years, the band appeared to try to get away from the song itself, recognizing how much criticism they got for the lyrics. Adam Horovitz was quoted in an interview noting that while the song was done "as a goof," many people took it seriously and the band should have been more cognizant of that. It's also claimed that the band never performed the song live. Given that, it seems like this would have been an excellent opportunity to embrace the parody, to support the basic message of the video and to show that they didn't really mean what was said in the original lyrics.

Instead, the (remaining) Beastie Boys come off as copyright bullies, trying to stifle a message of empowerment, while standing firm on a misogynistic message in their own song. Why they'd want to come off that way when they have a clear chance to change the storyline in their favor is beyond me.

Filed Under: beastie boys, commercials, copyright, fair use, parody
Companies: goldieblox, universal music

DailyDirt: Ads Are Content... And Should Be Shareable

from the urls-we-dig-up dept

Everyone complains about intrusive and annoying ads. If ads were entertaining and enjoyable, people would actually want to watch them. This shouldn't be surprising to anyone reading Techdirt on a regular basis. Somehow, though, it's much easier to find ads that are annoying than enjoyable. Here are just a few examples of viral ads that prove that commercials don't have to be irritating or pushy to convey their marketing message.

• Jean-Claude Van Damme has performed his most epic splits ever for a Volvo ad. But before that, JCVD had a lot of practice doing the splits on film. [url]
• Goldieblox mashes up a Rube Goldberg machine with a Beastie Boys cover to promote its girl-targeted toy that is supposed to expand girls' toys beyond just dolls and pink accessories. If there's a formula for a viral ad, it probably should contain some catchy music or a Rube Goldberg contraption. [url]
• One of the most viral online ad campaigns of all time has to be Blendtec's series of 'Will it blend?' videos. Will an iPad blend? Yes, but first they had to cheat a little and bend the iPad in half to make it fit into the blender. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: ads, beastie boys, commercials, girls, jean-claude van damme, marketing, media, rube goldberg, splits, viral videos
Companies: blendtec, goldieblox, volvo