GoldieBlox’s Parody Of The Beastie Boys Is Probably Fair Use

[Update: After I published the initial version of this post, GoldieBlox pulled the video and "apologized." My thoughts are appended at the end.]

 

About 30 years ago, a punk rock band in New York City had the good fortune to run into an NYU student named Rick Rubin, who convinced them to move into hip-hop and rap and began producing them. This compelled the only woman in the group, Kate Schellenbach, to leave. (She eventually went on to join Luscious Jackson and to be a producer of The Ellen DeGeneres Show.) Three years after that, they released their debut album Licensed to Ill, which became the first rap album to hit No. 1 on the Billboard chart.

 

On that album was a short, repetitive (the melody is just The Isley Brothers’ “Shout” played over and over again), misogynistic track titled “Girls,” a track hated by a large swath of society, including, apparently, some of the band members. The Beastie Boys never played it live, and Adam “MCA” Yauch subsequently apologized for the insulting and bigoted content on the album, including in 1994 lyrics “I want to say something that’s long overdue / the disrespect to women has got to be through / to all the mothers and the sisters and the wives and friends / I wanna offer my love and respect to the end,” and in a 1999 letter to Time Out New York.

 

It was thus deeply satisfying to see GoldieBlox, the makers of a science-based toy for girls (one that I pre-ordered for my girls and received as a gift from my mother), repurpose the song as a girls-empowerment theme, changing lines like “Girls, to do the dishes / Girls, to clean up my room” into “Girls, to build the spaceship; Girls, to code the new app.” They then posted it online, and it promptly went viral, shared widely by the many people who hated the original “Girls.”

 

It’s unclear what exactly transpired between The Beastie Boys and GoldieBlox, but it is clear The Beastie Boys felt the use was for commercial advertisement, even if it was for a positive message with which they now agreed, and so now the case is in Court. The Hollywood Reporter has the complaint.

 

Considerable attention has been drawn towards the fact that Goldieblox filed the case, not The Beastie Boys (or Def Jam Records, or any of the other entities involved), but in the world of copyright litigation, that doesn’t mean too much. If there’s doubt as to whether or not you’re infringing on a copyright (i.e., if you’ve received a specific claim that you’re infringing), there’s good reason to file first, and in this case the complaint is filed against a bunch of massive corporations in a district that is convenient to them (i.e., the Northern District of California), and so this isn’t an example of a big company trying to push around a copyright holder by preemptively suing them in a far-flung jurisdiction. I personally wouldn’t have filed first, but there’s nothing unusual about GoldieBlox doing it, and the law encourages them to file quickly to remove the cloud of doubt — if they don’t, and it turns out later that a court finds the work to be infringing, they could be on the hook for much larger damages.

 

Now, on to the merits: does the GoldieBlox commercial infringe upon The Beastie Boys’ copyright to “Girls?” 

 

On one level, the answer is: of course it does. GoldieBlox re-recorded the same short melody on a vibraphone, then sang new words in the same melody and the same cadence. That’s more than enough for copyright infringement; Vanilla Ice got into hot water for sampling far less of “Under Pressure” for “Ice Ice Baby.” (Fun fact: Vanilla Ice later bought out the rights to both songs, so now “I can do whatever I want with it, because I own it.”)  But the Copyright Act explicitly allows for a “fair use” defense, by way of four factors set out in Section 107:

 

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

 

It’s the first issue that people have debated the most here. As GoldieBlox argues in its complaint:

 

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.

 

In response, The Beastie Boys have said:

 

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.

 

Surprisingly, we have a Supreme Court case that’s directly on point that can help us decide this issue.

 

Back in 1989, the rappers 2 Live Crew made their own version of Roy Orbison’s “Oh, Pretty Woman,” which was predictably crude and offensive. (The Court, said, “2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility.”) The copyright owners sued and lost in the District Court, then won in their appeal to the Sixth Circuit, which held that the commercial purpose of the 2 Live Crew version precluded them from arguing it was a parody. The Supreme Court sided with the District Court, holding:

 

The central purpose of this investigation is to see … whether the new work merely supersedes the objects of the original creation … or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks … whether and to what extent the new work is `transformative.’ …

 

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.

 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

 

Truth is, Campbell alone resolves the issue raised by The Beastie Boys, i.e. that the use is objectionable because, regardless of how empowering and affirming it may be, it’s nonetheless commercial. Campbell says that commercial intent alone isn’t enough to preclude an infringing work from being protected as a parody.

 

Since then, by and large, commercial parodies of other songs have generally been protected. See, e.g., Abilene Music, Inc. v. Sony Music Entertainment, Inc. (rapper Ghostface Killah’s rendition of “What A Wonderful World” protected); Bourne Co. v. Twentieth Century Fox Film Corp. (Family Guy’s “I Need a Jew” rendition of “When You Wish Upon A Star” protected). The key issue is whether or not the new work “transforms” the prior work in a way that comments upon the prior work’s message. The parody exception remains narrow; if Nabisco had redone “Girls” just to sell Oreos, without any sort of comment on the original content in “Girls,” that would not be a parody — but GoldieBlox’s commercial squarely addresses the content at the heart of “Girls.”

 

All of which is to say that I think GoldieBlox should win this one. Moving beyond the legal issues, though, as Jason Koebler at Vice argued:

 

GoldieBlox is a for-profit company, so it’s understandable that a musician would want them to license a song before using it. But when that song is one that you’ve essentially disavowed, a song with views on women that would have been outdated in the ’50s, it’s time to let it go. When the parody is one that empowers girls, a parody that tries to right an extremely important problem, it’s time to let it go. Let. It. Go.

 

Indeed.

 

Update 1GoldieBlox pulled the video (replacing it with the same video with a different soundtrack) and posted an apology letter on their website saying “[a]lthough we believe our parody video falls under fair use,” they intend to “respect [the] wishes” of the Beastie Boys and the late Adam Yauch to not use their materials in advertisements. They then shamelessly blame the Beasties’ lawyers for the debacle, claiming “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.”

 

GoldieBlox’s apology strikes me as at best amateurish and at worst the end of a dishonest media stunt. If they wanted to “respect the wishes” of the band, why did they create the ad without a license in the first place? Why did they file the declaratory judgment, which is very clear in stating that GoldieBlox is bringing the case out of principle? I suppose that’s irrelevant, now, but as Mathew Ingram says at GigaOm, this farce may not be harmless, it may be yet another strike against the fair use doctrine. Finally, what am I suppose to tell my little girls — that they should stand up for principles until boys complain?

 

Update 2: On Twitter, Mike Masnick challenged me to explain why GoldieBlox’s actions hurt fair use. You can read some of the conversation, to the extent any conversation on Twitter is readable. The core difficulty with fair use is uncertainty: nobody knows, until a court / jury / appellate court says, whether a particular use is “fair” or not, and thus there’s a significant chilling effect on uses that are most likely “fair.” Advocates like Lawrence Lessig have made that argument for some time.

 

In this case, a well-funded, well-informed, media-savvy corporation that was well-advised by highly-qualified counsel put together a highly popular transformative work that was squarely within the framework outlined by the Supreme Court in Campbell. (Indeed, I’d the argument for fair use here is stronger here than in Campbell, not least because GoldieBlox’s work isn’t arguably competitive with The Beastie Boys’ work and because it also included an entirely new video.)

 

Yet, within days of The Beastie Boys raising publicly the same objections their attorneys raised privately (which is what prompted the lawsuit), GoldieBlox capitulated entirely; they didn’t settle, and they didn’t even get a formal answer from The Beastie Boys, much less rulings from the Court on their complaint. If GoldieBlox couldn’t pull off with confidence a parody in this circumstance, then nobody can. This is a victory for “copyright maximalists,” particularly in light of the numerous non-legal commentators who opined that GoldieBlox’s use was plainly infringement — a serious blow to the years-long effort to educate the public and elected representatives on the proper extent “fair use.” Mike Masnick disagrees, and believes this case won’t be viewed that way by future potential creators or copyright holders. I hope he’s right.

 

Update 3: Popehat concludes, “[this outcome] doesn’t determine the fair use question, but it does suggest to me that either (1) GoldieBlox and its lawyers never thought this through, or (2) it was all a publicity scam from the start.” I believe it’s the latter; GoldieBlox’s lawyer is no fool.

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  • MB

    Great post. I agree wholeheartedly with GoldieBlox’s message, though I will say that there is something unseemly about using a song without permission and without paying royalties (even if it’s technically legal to do so). Controversy is great marketing, and I can see that as the reason behind filing preemptively. They probably sell more toys that way.

    • http://www.litigationandtrial.com/ Max Kennerly

      It’s tough to see artists — particularly artists who these days seem so well-meaning — feel as though their work has been stolen, but the simple truth is that parodies are never with the total consent of the original creator, because they by definition lampoon the creator or their message. Weird Al Yankovich, for example, had numerous stories about the difficulties he had with many artists who felt that his work (which was always done in good spirit, as a homage to the creator) belittled their artistic achievements.
      That said, in a free society, parody and satire are essential components, and we are better off for having them.