You Gotta Fight For Your Right To Parody
In 1987, the Beastie Boys wrote this:
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
Two at a time I want girls
With new wave hairdos I want girls
I ought to whip out my girls, girls, girls, girls, girls!
That's a rare instance where a reference to new wave hairdos isn't the most embarrassing part of the lyric.
A company called Goldieblox, which sells toys designed to get girls designing and building rather than princessing and preparing to be drunkenly pawed by oafs, did a parody cover as part of an advertisement:
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.To bring us up to speed it’s
Girls.Our opportunity is
Girls.Don’t underestimate Girls.
Compare the videos here.
Goldieblox claimed that the Beastie Boys cried copyright infringement and threatened action. So Goldieblox sized the initiative and sued for declaratory relief, seeking a declaration of non-infringement in federal court in San Francisco. Seizing the initiative like that is often an effective tactic. Goldieblox isn't playing around; they are represented by giganto-firm Orrick.
The Beastie Boys are playing wounded innocence:
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.
Awwww. The Beastie Boys may be using this as a continuation of the "sorry for being douchebags" tour. Goldieblox may be using it for very clever pre-Black-Friday self-promotion. But the core issue is interesting.
The song is clearly a gleeful parody of the Beastie Boys' lyrics, which display typical and banal sexism. If someone did it to promote a nonprofit, or for art, or for fun, it would rather clearly be protected as fair use. It only uses part of the song, it transforms the song through parody, and it doesn't interfere with the market for the song. But this is a commercial use. Does that one factor outweigh the others? Not necessarily. In 1994, addressing 2 Live Crew's song "Pretty Woman" (a parody of Roy Orbison's song), the Supreme Court held that commercial vs. noncommercial use is just one of the fair use factors, and is not necessarily determinative.
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.
Instead, the case may involve detailed inquiry into how much GoldieBlox's version departed from the Beastie Boys' version:
This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. 2 Live Crew not only copied the bass riffand repeated it, [n.19] but also produced otherwise distinctive sounds, interposing "scraper" noise, overlaying the music with solos in different keys, and altering the drum beat. See 754 F. Supp., at 1155. This is not a case, then, where "a substantial portion" of the parody itself is composed of a "verbatim" copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists.
This will be a thoroughly entertaining fair use case to watch — if the Beastie Boys don't decide to find a graceful exit first.
Updated to add: GoldieBlox has taken down the parody ad, apologized (allegedly because they didn't realize that the late Adam Yauch had asked that Beastie Boys songs never be used to advertised), and said they will dismiss the lawsuit if the Beastie Boys agree not to sue. This 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. The fair use analysis aside, I think the Beastie Boys come out looking better in this dispute.
Last 5 posts by Ken White
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