You Gotta Fight For Your Right To Parody

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98 Responses

  1. Virgil says:

    As detailed over on BoingBoing (http://boingboing.net/2013/11/24/before-goldieblox-beasties-pl.html), the Beasties lifted the tune from the Isley Brothers.

    Grabs popcorn

  2. Earle says:

    You've gotta fight, for your right, to PARRRRRODY!

    ETA: Jiminy Christmas, I should read the freakin article headline before thinking I'm clever. Sheesh. IT pretty much writes itself, so score me one for discovery of the obvious. /shameface

  3. David says:

    Does the fact that Adam 'MCA' Yauch's will specifies that his music not be used for advertising play into this at all?

  4. ZarroTsu says:

    That's whatchu-whatchu-whatchu get, on level 5!

  5. Nicholas Weaver says:

    Question, has anyone seen any nastygrams or similar that shows

    In response, the Beastie Boys and their label have lashed out and accused GoldieBlox of copyright infringement.

    That seems to be the only statement concerning the Beasty Boys reaction, but there's nothing to support it. Is such a single sentence founding a complaint common in suits for declaratory judgement?

  6. I was more angry about this until I read that Adam Wauch had placed in his will that he didn't want his music to be used in advertising. Now that clause may not be legal or enforceable, but I have more sympathy for them trying to abide by their bandmate's last wishes.

  7. jorgeborges says:

    I'm sort of on The Beastie Boys's side on this one, at least if the information presented here is the whole story.
    Obviously most rap groups have no business complaining about "fair use" because of sampling etc., but they didn't actually sue.

  8. JonasB says:

    The Beastie Boys said that all they did was ask why the song had been chosen, and seem to imply that the lawsuit is an aggressive overreaction. I think it would be important to see the initial communication sent by the band, since that could clear up whether Goldieblox is being overzealous or not.

  9. Xoshe says:

    manybellsdown has a good point that's also mentioned in the Beastie Boys' response. Does moral rights trump fair use? If someone makes a parody of a work, but the parody goes against the author's wishes, can that be shown to not be fair use?

    My initial impression is that moral rights don't trump fair use, because I know that Bill Watterson has made it absolutely clear that he is against the commercialization of his characters in any way (other then selling copies of the books or the syndication of the strips), and yet the characters are found used in unofficial materials everywhere.

  10. Yauch* Sorry. Hadn't finished my tea.

  11. Luke says:

    I would like to see the letter from Beastie Boys lawyer to Goldiebox. IANAL but as I understand it all Goldiebox needs to sue for declaratation of non-infringement is the impression that the Beastie Boys might sue. According to the lawsuit, the Beastie Boys claimed the parody was not fair use, copyright infringement and the unauthorized use is a "big problem."

    If all of that is true, I see no problem with Goldiebox striking first and I hope they win. The video is obvious parody.

    MCA's will should have no bearing. The only thing it potentially stops is present & future owners of the copyright trying to use the work in ads. Otherwise everyone being parodied would say they are morally against parodies.

  12. Edward says:

    Seems like Goldiebox has a pretty good case. That said, argument by sanctimony isn't the most compelling case for the public, and it does seem like good manners to politely ask about using a song. It's the Weird Al way.

  13. solaric says:

    While I'll certainly be very interested to see a ruling (assuming, as you say, it actually goes that far) my initial reaction is that the Beastie Boys would be in the right. No matter how transformative, it's still a derivative work. Parody is an exception carved out of standard copyright, and should be strongly protected when it comes to commentary, mocking, etc. But allowing direct commercial use feels like it crosses the line directly into the domain of standard copyright. Nearly any work of any color can be reasonably parodied, but I'm not sure that in turn any of those can simply be sold, or used to sell other stuff. That Goldiebox is on the right side of history, that this is a good cause and promotes good feelings, should not hamper our judgement. The exact same situation would exist if a company parodied "I Have a Dream" and used it to sell a "Catch a runaway negro reenactment kit!"

    I think copyright itself, more then anything, should be far, far, FAR shorter. Back in line with what it was at the founding of the country (if anything, the immense drop in distribution costs and speed of the modern economy argues for shorter terms then that). In a world less subject to regulatory capture, the Beatie Boy's 1987 song either already would be or would nearly be in the public domain, and thus free to be utilized in new works for the general richness of culture (which is how copyright is supposed to work). But within the time of protection, I feel more cautious then you do about this kind of indirect commercial exploitation against the holder's wishes. I'm not sure that if they sought licensing and were denied they shouldn't have simply have come up with something else: there are no shortage of works from the old days with highly objectionable lyrics when it comes to equality. Or they could have funded it as pure political commentary and put it on their site or YouTube or whatever, with no reference to their products at all. It would still have had a positive aura for them which might have some help, but would have avoided the commercial angle.

    Anyway, that's just off the top of my head and I can certainly see arguments the other way too, so I may change my mind. I don't think this particular case is that clear cut though in favor of parody, even if SCOTUS said that commercial use by itself isn't a definitive test.

  14. DRJlaw says:

    And they're such champions of free speech themselves…

    1. "GoldieBlox's trademarks and trade dress may not be used in connection with any product or service that is not GoldieBlox's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits GoldieBlox."

    13. "[Y]ou agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any GoldieBlox Content. Use of the GoldieBlox Content for any purpose not expressly permitted by this Agreement is strictly prohibited."

    16. "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(R)* Terms of Service

    *U.S.Reg Nos. 4430092 and 4425174

    It's as if the Trademark Dilution Revision Act of 2006 never occured, and we live in a wonderland where you can control not only how others refer to you, but even their ability to link to your asshattery.

    Ooops… I might have violated something or other here. C'est la vie.

  15. Artor says:

    I have always detested the Beastie Boys. When I first heard of them, I didn't like the name, I didn't like rap music, (still don't) and their voices make me want to stab icepicks into my ears for a sense of relief. I have heard many people express appreciation for them, but I've never been able to see it at all. As such, I might be biased in this regard, but this incident seems to fit right in with my already low opinion of them. Fuck those guys, and the horse they rode in on.

  16. PonyAdvocate says:

    This appears to be a more difficult fair use case than those on which Mr. White customarily comments. I can certainly sympathize with the artists when they say "… long ago, we made a conscious decision not to permit our music and/or name to be used in product ads" only to have some commercial establishment do so without permission. There are many obvious reasons why the artists in this case might have a valid objection to the alleged infringer. Mr. White seems implicitly to admit the band may have a claim when he says [emphasis added]

    this is a commercial use. Does that one factor outweigh the others? Not necessarily.

    But in this case, it could, at least partly.

    And

    the Supreme Court held that commercial vs. noncommercial use is just one of the fair use factors, and is not necessarily determinative.

    But in this case, it might be, at least partly.

    Had the video not contained the penultimate plug for GoldieBlox toys, I would say the case was clear-cut. The plug makes it less so, I think, and makes GoldieBlox appear disingenuous when they claim the video was created "specifically to comment on the Beastie Boys song, and to further the company's goal to break down gender stereotypes…" GoldieBlox implicitly claims not to be trying to sell their products; I find this claim unpersuasive. The band at least has a reasonable claim, and the resolution is for the legal process to decide.

  17. Earle says:

    I confess that I am pretty ignorant of the works of the Beastie Boys and was not aware that the song in the GoldieBlox video was a parody of their song. My wife pointed the video out to me yesterday and it just struck me as being a not very good song that repeated its message in an unsubtle fashion. I now suspect the lack of subtlety and the "not very good" nature originated in the Beastie Boys version.

    The question of whether fair use will be an effective defense hinges in my mind on whether the use of the song in the video was explicitly to parody the Beastie Boys. It might be argued that it is just a convenient vehicle to riff off of but that the target of the parody is not the song but a notion that girls can't be engineers. It's a stretch, granted, but it could be stretched as far as the Cat in the Hat parody in a book about the O.J. Simpson murder trial. In that instance the use of the Dr. Seuss style was not found to constitute fair use. The cite I believe is Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

    Note: not a lawyer, just a Groklaw reader for 10 years so my understanding of copyright and fair use is pretty limited.

    ETA: OK, I suppose it's technically not a defense to assert fair use in request for a declaration of non-infringement. It would be a defense if the BB had already sued claiming infringement.

  18. slycivilian says:

    Thanks for covering this, and shedding some light. Saw it in non-legal press, where the mechanics of declaratory relief were not well explained.

    As far as the TOS for the blocks, I don't think we have to like them as speech actors or even as a product to say this ought to be allowed. They are still pretty pink, and my daughter will be unlikely to play with marketed up crap like this. What happened to a toy microscope and regular blocks, eh?

    Burnett v Fox seems like it might shed some light on which way 9th might lean on corporate/profit minded speech making a parody of other profit minded speech. INAL, but the bit about "how much do you make something new out of it" seems relevant. The speech in question is about gender roles and what girls are good for. The ad pushes back directly on the original. There is a solid reason for picking out that piece, and using the hell out of it to participate in the market of ideas (and dollars).

    They do take a risk in how much they sample…the balance probably hangs between those two points. If i have to wager, BB lose. If they let Family Guy go to network with a whole episode that makes Carol Burnett a porn narrator, and steals several iconic moments…

    I think they can let a rewritten song sell some toys.

  19. Ivraatiems says:

    Weird Al Yankovic writes song parodies and makes money off of them – isn't that protected? If so, why wouldn't this be?

  20. @Ivraatiems – Weird Al gets consent for his parodies beforehand. I think only a couple of artists have ever turned him down.

  21. alexa-blue says:

    I like the Beastie Boys and all. But (1) Goldieblox took a bad song and made it into a good advertisement, (2) I don't see a huge moral distinction between sampling a melody and putting your own crappy lyrics on it to sell albums to drunken frat boys, and what Goldieblox did (there might be a legal distinction, whatever), and (3) Adam Yauch is dead; I have a hard time caring whether his immortal soul is violated by this crass commercialism.

    Of course, I would never have seen the ad except that the Beastie Boys made an issue of it.

  22. Frank says:

    @manybellsdown

    Weird Al has acknowledge that while he seeks permission for his parodies, permission from the original singer/song writer is not required for his songs. His legal team has already fought, and won, that battle.

  23. Stephen says:

    I'm with Ivraatiems. How is this different than Weird Al?

  24. DRJlaw says:

    @slycivilian

    As far as the TOS for the blocks, I don't think we have to like them as speech actors or even as a product to say this ought to be allowed.

    We certainly don't have to like them in order to support the principle of fair use, or to dislike them in order to question whether fair use should extend so far.

    On the other hand, when Ken describes one side as "playing [up] wounded innocence," it's appropriate to look at and question the other side's behavior as well. There's a big difference between grasping for advantage and seeking to uphold a principle. This is a company that claims the ability to control and license how and when you may hyperlink to its website.

    Think about that a moment.

    You don't have to copy or transform any of their pnline content — merely refer to it in a manner that they find objectionable — and you are implicitly threatened reponding to an action filed in Santa Clara County, California (TOS section 21).*

    They also claim the ability to control disparaging, discrediting, or otherwise objectionable content merely associated with them by name or those links, while admitting that "GoldieBlox created its parody video with specific goals to make fun of the BeastieBoys song…" (complaint, section 20).

    All for me, but none for thee… Forgive me if I fail to feel sympathy for a proponent of fair use case that appears to push the concept too far without actually haven taken the concept to heart.

    *The leaky terms-of-service-hyperlink-buried-at-the-bottom-of-the-webpage concept has not fared well in the modern era. If you spend the money on competent counsel, you can probably force them to come to you. Of course, then you've already spent a pile of money, haven't you…

  25. AK says:

    My impression is that there is a much much bigger mess here than even Ken has acknowledged. First off, it's worth noting that most sampling in hip-hop is properly (and expensively) licensed, so snide remarks on that front are about a decade late. But the distinctions between sampling, parody, and satire seem fairly blurry. (Not to mention covers vs parodies, a la the "Baby Got Back" issue with Jonathan Coulton). From the 2 Live Crew case:

    If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. [n.14] Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet

    I'll be interested to see what happens with this case, but I'm not exactly convinced it's a slam dunk.

  26. Anton Sirius says:

    I'll be the guy to reductio ad absurdum this one:

    If Goldieblox's Girls is fair use, then there's nothing stopping BP from riffing on War's Spill the Wine and changing the lyrics to have a pro-"look at the great job we did cleaning up the Gulf we're so environmentally friendly" theme as part of a massive marketing campaign.

    Moreover, why would any company ever license a song for an ad campaign ever again? Just change the lyrics of the song to ones that promote your product or brand and, hey presto!, free song. Why pay a gazillion dollars to the Stones for the rights to Start Me Up for your car commercial, when you can pay some marketing schlub their normal salary to come up with Ford-themed lyrics for it?

  27. The other issue with Weird Al is that he's selling the parody itself, not using the parody to sell an unrelated product. IANAL but my understanding of fair use is that the parody is the protected entity, not the use of the parody to advertise.

  28. Lizard says:

    Does the fact that Adam 'MCA' Yauch's will specifies that his music not be used for advertising play into this at all?

    On a moral or ethical level, it might. In terms of relevant copyright law, as I understand it (IANAL), it's about as relevant as me putting in my will that, every day on my birthday, a thousand people chosen at random will be sacrificed in the fire-filled belly of Baal to honor my life. You don't get to change the law by writing a will. Your will can specify what is to be done with your property, but only to the same extent you could do the same thing while you were alive.

    If the use of the song could be prevented by law when Yauch was alive, the will may bind the inheritors of his property to obey his wishes — I don't know, I've never even looked at that part of the law. It usually shows up in bad comedies and I assume they're not legally accurate. If he couldn't prevent the use of parody while alive, which seems to be Ken's take on it, I don't see how he can prevent it when he's dead.

  29. Kirk Taylor says:

    Many people seem to ignore the difference between sampling a song to make another song, and sampling a song to make a commercial. I think many artists would find that to be a BIG BLACK LINE. I know I do.

    The law may say otherwise, (though I doubt it) but I would think making a commercial vice making another song would be an example of one of the "other factors" that the Supreme Court said should be taken into account.

  30. Lizard says:

    If someone makes a parody of a work, but the parody goes against the author's wishes, can that be shown to not be fair use?

    I daresay, the more the parody goes against the author's wishes, the more protected the parody is, in that it's more obviously comment/criticism, than simply changing a word or two and calling it "parody".

    Moral rights? Since when is there a right not to be parodied?

  31. Ken White says:

    I don't think I suggested it was a slam dunk — in either direction. That's why I said it would be interesting to watch.

    For what it's worth, I think one of the strongest factors in GoldieBlox's favor is how their parody is a very direct criticism of and rebuttal to the message and lyrics of the original. In other words, it's not a riff.

  32. Luke says:

    Re: Weird Al

    When Lady Gaga did not grant permission* to parody "Born this Way" he immediately put it up on youtube. She supposedly wanted to hear the song before granting permission so he had already put in all the studio time to make it. As Frank said it's his personal preference to get artist permission and he wasn't going to put the song on the album without it but that doesn't mean he won't release it as it all falls under fair use.

    *After the story of her refusal broke out Lady Gaga claimed that she had no knowledge of any of this and that is was all one of her managers. She then granted permission.

    Bleh, got marked as spam when I tried adding a link to Weird Al's site with his story. Google for weird al the gaga saga and it should be the top link if you are interested.

  33. Ivraatiems says:

    Weird Al can still make money off of his Gaga parody – if he, for example, monetizes that YouTube video. As others have said, just because he chooses to get permission doesn't mean he has to.

    I don't see how this is materially different. If anything, it's even less of a case, because an advertisement does not itself make money, and because the song is obviously a parody, there's no way anyone can construe the Beastie Boys as being the ones advocating the products being advertised.

  34. db says:

    weird, as i don't remember a lawsuit resulting from The Beastly Boys "Squirrels" in the late 80s (see: Dr. Demento radio show)

  35. Mitch says:

    Ken – One thing that is not clear is whether there really is declaratory judgment jurisdiction here. I find it odd that the plaintiff did not affix the correspondence from Beastie Boys to the complaint. The specificity of the threat in the letter ordinarily is the key to determine whether there is "actual controversy" sufficient to satisfy Article III.

  36. Bren says:

    Ahhhh I wonder if the Striesand Effect is being monetized in this case?

    Did the Beastie's iTunes sales get a bump from the controversy?

    Did Goldieblocks get their declaratory relief in ASAP just so they could get that PR bump?

  37. Xennady says:

    I loath the Beastie Boys, I've never heard of Goldieblox, and I agree with whomever said up thread that this song should be just moments away from becoming public domain due to its advanced age.

    Whatevs. What really strikes me about this post is the ritualistic denunciations of the Patriarchy, which is still somehow keeping womyn down because a rap group from the last century suggested that girls do the dishes, and stuff.

    I beg pardon if I ramble off topic a bit, but having spent most of my life in the United States I humbly suggest that one of the problems American society does not have is sexist oppression of females.

    I see no reason why the Beastie Boys need to find a graceful exit, abandoning their day in court, merely because they have violated the dictates of feminist dogma.

  38. Anton Sirius says:

    "For what it's worth, I think one of the strongest factors in GoldieBlox's favor is how their parody is a very direct criticism of and rebuttal to the message and lyrics of the original. In other words, it's not a riff."

    Is it though? I've always heard Girls as a criticism, not an endorsement, of teenage boys' attitudes towards the opposite sex. Maybe I've been giving the Beasties too much credit, but I find it impossible to take those lyrics seriously, or at face value.

  39. Jason says:

    This whole "what does MCA's will say?" question would be moot if copyright ended when the copyright owner died, like it should.

    Copyrights lasting longer than the artist does are ridiculous. The Constitution expressly establishes copyrights to spur on the creation of works. How the hell does protecting the creations of dead artists spur on the creation of new works?

  40. Xoshe says:

    @Lizard: The point was less "I have a moral objection to being parodied" and more "I have a moral objection to what you're parodying using my content," as the definition of parody allows for the actual target to be something other then the original work being used in the parody.

    So, for example, if Bill Watterson has a moral objection to his characters being used commerically, and yet people use Calvin to parody an auto manufacturer's reputation, does he have a case that it's not fair use? My initial impression is that he doesn't, because the depections still exist.

  41. Ben B. says:

    One difference between Weird Al's parodies and Goldieblox's use of "Girls" is that Weird Al's parodies are not being used to sell an extraneous product (e.g., self-righteously marketed plastic toys), they are the product. For what it's worth, Goldieblox uploaded the ad on youtube under the title "Goldieblox, Rube Goldberg & Beastie Boys"; I think that the direct invocation of the Beastie Boys does misleadingly imply that the Beasties approved the use (regardless of whether their approval was legally required) and therefore suggests that Goldieblox may not be operating in good faith here.

    Anyway, I don't want to get all Goldiebloxy about it, but the Beastie Boys are much more talented and varied in their output, and their Weltanschauung a lot more nuanced, that Ken seems to realize. I recommend that you listen to Paul's Boutique some time.

  42. Chris F says:

    Anton Sirius

    I've always heard Girls as a criticism, not an endorsement, of teenage boys' attitudes towards the opposite sex. Maybe I've been giving the Beasties too much credit, but I find it impossible to take those lyrics seriously, or at face value.

    To count as parody does it need to speak out against the originator's intent or how the public actually takes it? Either way has it's perils.

  43. Anonymous Coward says:

    Kind of surprised that BB are painted the bad guys here. They didn't sue anyone. They tried to simply talk about it, and they were sued first. If Goldieblox was so innocent, why did they immediately go on the offensive? BB doesn't want their songs in advertising, is that so bad?

    The issue of fair use (which is very important to me) seems to take back seat to the greater issue of the "sue first, ask questions later" mentality of our system.

  44. Don says:

    "They tried to simply talk about it," sure, they were just looking for a pen-pal! They didn't reach out as the first step in deciding how to take action, they just wanted to say hi, how are you, and make a passing mention that the thing was done without their permission.

    It's their chicken-shit "we didn't file suit, you did" attitude that is half of what annoys me about their response. They didn't threaten to sue outright because that can be problematic if you then don't file. Acting so hurt that Goldieblox responded by trying to put a pin in this once and for all by filing for relief is childish and unbecoming a multi-million dollar enterprise like the Beasties have become.

  45. John says:

    I find it odd that a place where so many so often talk about defending speech even if you don't like it, so many people seem to be picking a side based on who they don't like. It seems the people on the side of Goldieblox are in a hate the BBs crowd rather then it was fair use. I think in a time when artist (admittedly the labels more than the artists) are losing revenue anyway to the digital world and piracy a band should be able to protect its interests.

  46. Tracy Hall says:

    Ken;

    In every single case cited here and elsewhere, the infringing work is an artistic, critical or journalistic work, whether sold/marketed commercially or not – 2LiveCrew, Weird Al, etc.

    In this case, it is clearly and explicitly not an artistic work – while it uses the form of a parody, between product placement and the tag at the end it is obviously an advertisement for their product – indeed, this is their entry to win a broadcast slot during the Super Bowl.

    It would seem that parody or not, transformative or not is entirely moot.

    Perhaps if they had not had extensive product placement, and had foregone the product/company mention at the end, and indeed released it as social commentary, it would be quite validly an expressive work, and obviously fall into the "fair use" exception – and let's not forget that "fair use" is the exception, not the basis, for copyright.

    Their own mention of "Beastie Boys" to get attention makes it clear they are looking to use the existing (good or bad) reputation for their own gain. Doing so without informing the copyright holder (not generally required in "fair use" cases) makes that commercial use that much more, well, nefarious.

    The rise of Fair Use in the sharing economy has been fairly defended and expanded – but it seems that those without experience in the world of copyright before this expansion now believe that all use is "fair use".

    I have asked in other forums whether debaters would be comfortable with Hasbro or Mattel using this exact same parody, this exact same video, to advertise this exact same product. None has addressed this point. I think the valid social criticism in the video, it's novel and empowering message, and admirable goal distracts from the simple, clear fact that this is a commercial advertisement for a corporation – not an artistic work by individual or group of individuals.

    Tracy Hall

  47. Charles says:

    Fuck those guys, and the horse they rode in on.

    What did Paul Revere ever do to you?

    The fair use issue is a really close call. Anyone who claims certainty either way is posing.

  48. Ken White says:

    I think Tracy makes the most persuasive case so far for the BB side.

  49. Charles says:

    Except that Tracy is claiming that there is a commercial/artistic binary in copyright/fair use law and there is not. 2LiveCrew wasn't giving their art away. Commercials can include parodic elements and fairly incorporate otherwise copyright-protected material. Like I said, it is a close case.

  50. dee nile says:

    So the Beastie Boys own a song? Well, somebody along the line gave them some help. There was a great teacher somewhere in their lives. Somebody helped to create this unbelievable American system that we have that allowed them to thrive. Somebody invested in roads and bridges. If they've got a song—they didn't write that. Somebody else made that happen.

  51. AlphaCentauri says:

    Gotta wonder what they were thinking. How hard is it to find a misogynist song by a hip-hop artist who is willing to accept licensing fees to have their song used in a commercial? (Or one who now has a daughter and is maybe looking at her career choices in a different light? )

  52. Irk says:

    A lot of people (including GoldieBlox) are taking this opportunity to paint the Beastie Boys as if their lyrics to one song done very long ago (and taken completely at face value instead of possibly sarcastic or making fun of pathetic teenage boys, which had been my interpretation before now) sum up their views on women, when possibly it's not the case.

  53. Tracy Hall says:

    Charles;

    2LiveCrew was commercially selling an artistic work – which was my point. GoldieBlox is not selling nor distributing an artistic work – they are selling an entirely unrelated commercial product, and using this parody to promote it.

    Partly the confusion is the use of "commercial" in the Fair Use sense, and the use of "commercial" in the advertising sense. Yes, one can use Fair Use exception to copyright law in a work that is then sold commercially. But using it in a "commercial advertisement" (colloquially shortened to "commercial") is a separate matter.

    Tracy Hall

    Or shall we just decide that all use is "Fair Use", and copyright has no more meaning?

  54. Tori says:

    I'm getting the same impression as Bren above that it feels like GoldieBlox is hoping to use the Streisand Effect to commercial advantage. Without seeing how they were approached about using the song in the parody it's hard to determine but at face value it appears to be an overreaction on the part of GoldieBlox.

  55. Simon says:

    As the court noted unanimously in Campbell v. Acuff-Rose Music, supra, at 585, "[t]he use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake" .

    If Goldieblox had requested permission to use the relevant portions of the copyrighted work for commercial sale, it is likely that it would have been available; the band's explicit repudiation of the misogynistic lyrics weakens the concern that lies at the heart of the parody defence – "[s]elf-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee." Fisher v. Dees, 794 F. 2d 432,437, as cited by Kennedy in his concurrence to Campbell, supra, at 597.
    I would think that the case would turn on whether the purpose of the work was to promote GB's product (i.e. still under first factor). If they can show that, I think they're home free (I reckon they win if it comes down to the third factor).
    I would not expect the Beastie Boys to back down. This is a point of principle, rather than money. They can afford to defend the case, and the may even have won the PR battle the moment that GB rushed to file suit (If you've lost the New York Times, you've lost your target demo).

  56. mushmouth says:

    Also the original writer is paid a royalty for each copy of the Weird Al parody sold or played in a public performance. This is statutory either Mechanical or to the Publishing Company. I don't know how that works with video sync costs which are not statutory. Also Tom Waits (and Bette Midler before him) successfully sued for large damages when a company used a sound-alike to sell their product. The damages were increased due to his outspoken desire not to be used for advertising.

  57. Spacemanmatt says:

    Based on this, I don't think the Beasties should even have standing to complain in public, much less in court. And I consider myself a big fan of the Beastie Boys…

    https://soundcloud.com/itshard2bgod/beastie-boys-vs-isley-brothers

  58. ShelbyC says:

    How does the fact that this is commercial speech, which is accorded less first amendment protection, and not just commercial use (like the 2 live crew parody) play into this? The purpose of this use is not criticism or comment, but to propose a commercial transaction.

  59. Paul Hartzer says:

    While I in general agree with the comments of Tracy Hall and others who argue that the attachment of this song to a commercial product is a mitigating factor in parody law, I think it's also important to note that GoldieBlox has a clear parody-based reason for selecting the song. It sells a product that's openly critical of misogyny in the toy industry. Selecting a song that's overtly misogynistic would seem relevant.

    As a contrast example, imagine Shout cleaner used "Shout" by Tears for Fears with parody lyrics: "Shout! Shout! Get it all out! These are the stains we can do without!" My understanding of parody law is that the defense of a parody is strengthened if something about the original work is actually being parodied. That wouldn't be the case with this (hopefully) putative Shout parody; that is obviously the case with GoldieBlox.

  60. akahige says:

    I have to disagree with Tracy that the piece in question is "clearly and explicitly not an artistic work". Unless I'm missing something, and unless there is some exact definition of what constitutes an "artistic work", then it shouldn't matter the context in which (or for which) lyrics are created, or a music video (or commercial) is conceptualized, storyboarded, and shot, it is — they are — most definitely creative, and therefore artistic.

  61. babaganusz says:

    superficial haters of the beasties, thinly veiled or otherwise: fuck you more.
    less-superficial haters: surprised nobody dragged out the [also-long-since-repudiated] "their father had AIDS so i shot '[e/i]m in the head" line from the same album, just to paint yourself a little more into the righteous corner.

    that said, the ad was a bloody brilliant meme easily recognized by a not-inconsiderable slice of pop culture (and maybe even age range). that said, GB's strategy since producing it seems either ill-thought-out (conveniently not-yet-obvious even if it's the case, which i kinda doubt) or a potentially exquisite test of who wants to follow what principle (fair use, social justice/equity, wishes of deceased colleague…) through to the perhaps-bitter end, and how much each player is willing to allow that follow-through to subject them to… well, i'm guessing internet abuse on average, payment of 'damages' at worst. (i'd be surprised to see GB sued for money, though.)
    surely some insecure pricks will want to spin this as GB being spoiled little whatevers and taking without asking; surely some puffed-up social justice aficionados will (sigh) want to conflate that 'grab' with the empowerment celebrated in the ad (get ready for nuance-wasteland social-consequences round-up!)…

    c'mon… we know the ad is already Out There. the closest to a win/win i can imagine is that everyone gets a little longer to share, cheer/chuckle, save to hard drives for posterity, and then the takedowns. no matter how palpable a parody, it's irrevocably an ad; the publicity is already golden, though i can understand the possibility that GB gives nary a toss as to the premise that even if they happen to get painted dastardly… whose business would they lose, exactly? it would indeed be interesting to see how the 'standing proud empowering women' card may or may not shape a verdict – or to what extent it could be exposed as a disingenuous play. (and to a far lesser degree, who among we intertubes denizens would care one way or another as long as so-and-so perceives some form of comeuppance.)

    and those who think 'Girls" homage to 'Shout' (sure, call it a rip-off if that toasts the cockles of your feefees – preferably backed up with an actual gripe, ever, by the IB or even their fan club) is some kind of ~gotcha~, weakening case or principle, must hope the hypothetical judge either understands fuckall about the last 30 years of the recording industry (we can only hope that's unlikely considering the field) or harbors indignation that the BB profited diabolically from 'Girls" template amid the dozens of actual samples they appear to have had no trouble clearing for the debut LP, let alone Paul's Boutique (more likely but still un-).

  62. babaganusz says:

    mostly i'm just happy we live in a time and place in which "parody law" bears serious discussion.

    @ akahige – probably would have helped for them to release a non-advert edit before now, then. though straddling applications at any moment would of course be amusing to many. also [re-?]note the unanimous precedent Simon pointed out: "entitled to less indulgence under the first factor of the fair use enquiry".

  63. babaganusz says:

    oh, and inb4 some knucklehead thinks my reference to 'Shout' (by the Isley Bros.) has any connection to Paul Hartzer's [clever-facepalm-bait!] reference to 'Shout' by TFF.

  64. Vicki says:

    Copyright lasting longer than the creator's life is an incentive for people who know or believe that they will be dead soon to do creative work, if they have families they want to provide for, such as a musician or novelist who knows s/he has cancer.

  65. AlphaCentauri says:

    Can someone explain to me why "Love Me Do" is no longer under copyright, but "Happy Birthday to You" still is?

  66. Scott C says:

    Re commercial use not being dispositive, the parties are advised to chill.

  67. Scott C says:

    @Tracy Hall,

    It has admittedly been a long time since I have looked at any of the parody as fair use cases. But I don't recall there being a distinction between whether you are using the parody to promote something else or selling the parody itself. The question is whether it is truly parody, i.e., are you criticizing or making social commentary of the work itself, or are you merely trading on the popularity of the work itself. In this case, in my opinion, this is truly parody of the work itself. Goldiblox is making a statement about the sexism of the work. The fact that they are using that to promote something else seems to be a red herring. It would seem odd to me that they could benefit from the parody directly but not indirectly, so long as they are parodying the work.

    But like I said, I haven't looked at these cases in a while.

  68. Dave P says:

    A couple of thoughts/questions:

    First, there has been a lot of comment on Weird Al and various other lawsuits in this area – where would Tom Waits's legal victories fit in all this. He has been steadfast in opposing commercial outfits using his music, and has had legal success even where soundalike singers and songs were used instead of his own voice and songs – from memory Frito Lay and Levis were two who either lost or settled with him.

    Second, I wonder how much GoldieBlox pre-emptive legal action is designed to get wide exposure – I came across them on Upworthy because they are trying to win a competition to get their advert on Superbowl. I suspect this brouhaha will be helping increase their votes in that competition. I applaud what they are trying to do with respect to gender roles, but if their motivation behind the lawsuit was to raise their profile and get more votes, then I'm not so admiring of them.

  69. babaganusz says:

    "The fact that they are using that to promote something else seems to be a red herring."

    would you mind elaborating how so? does it 'just so happen' to involve product placement in a sense that cannot have a bearing on the suit?

    also, it would seem that Simon has been invisible at least twice now, so i'll try 'bumping' this:

    As the court noted unanimously in Campbell v. Acuff-Rose Music, supra, at 585, "[t]he use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake" .

    or is that somehow rendered irrelevant by the parody itself not actually being sold (yet)?

  70. Aaron says:

    @AlphaCentauri

    Can someone explain to me why "Love Me Do" is no longer under copyright, but "Happy Birthday to You" still is?

    It isn't. Which is to say that there is a case currently pending based on what seems like solid research to get it declared public domain.

  71. Earle Williams says:

    I have no idea how authoritative it is, but there is a pretty detailed summary of some fair use cases at http://fairuse.stanford.edu/overview/fair-use/cases/

  72. Scott C says:

    @babaganusz,

    I hadn't read the cases. So I was commenting based on my memory of the cases from law school that parody needed to be commentary on the work itself rather than commentary on society at large only tangentially related to the work itself. Having read Campbell, I will admit that I have elevated the inquiry over whether the work qualifies as a parody at all as being dispositive of whether the use is fair.

    Speaking from my opinion only and not considering what the law might be in this area, I would argue this should be a fair use. This is not a case where you need to strain to come up with an interpretation of the Goldieblox lyrics to find a parody of the work itself. This is pretty squarely a commentary on the perceived sexism of the Beastie Boys song. And even though an advertisement, the products being promoted, i.e., girls' empowerment toys, fit directly within the the commentary of the parody. Under these circumstances, because of the nexus between the thing being sold and the social commentary of the parody, I wouldn't split hairs over whether the parody itself was being sold or the parody was being used to sell something else.

    So, red herring? No. It appears to be an issue that was squarely raised by the Court and one which I glossed over. But I wouldn't let it trouble me in this circumstance that this was an advertisement for something else.

  73. Jon says:

    @AlphaCentauri — there's significant debate over whether Happy Birthday is still under copyright; it's undisputed that the melody itself is no longer copyrighted, only the combination of the music and lyrics may be. See the relevant Wikipedia page for much more.

  74. Christopher says:

    I have asked in other forums whether debaters would be comfortable with Hasbro or Mattel using this exact same parody, this exact same video, to advertise this exact same product. None has addressed this point. I think the valid social criticism in the video, it's novel and empowering message, and admirable goal distracts from the simple, clear fact that this is a commercial advertisement for a corporation – not an artistic work by individual or group of individuals.

    So, yeah, I feel like there aren't any clear bad guys here.

    IANAL, so I have no idea how the distinction between advertising and parody shakes out in court.

    And I'm honestly not sure whether it should legally be a factor.

    That said, even if it's not a legal distinction, and even if we might have trouble teasing out the exact borders, there is a difference between a work of art and an advertisement, and the desire to not have your work featured in advertisements is reasonable.

    It's really hard for me to fault the Beastie Boys for saying "Hey, don't use our copyrighted art to sell your product".

    It's quite possible that this is fair use, but it seems like legally it could go either way, and morally both parties seem to have a pretty defensible case.

  75. Anony Mouse says:

    and to further the company's goal to break down gender stereotypes…

    In boxes colored the most adorable shade of pink.

  76. Black Betty says:

    Ken,

    I have a question about licensing. Set aside the parody issue for a moment. I think there is another problem with what Goldieblox did.

    When a corporation wants to use a song in their adverts (any song, whether it has lyrics or not), they must obtain the licensing and pay for the "music". If Goldieblox is allowed to use the music for "Girls" without paying for it, then what is stop any corporation from stealing songs and changing the lyrics in order to relieve themselves of licensing fees simply by claiming fair use?

    Goldieblox didn't just take the words from "Girls" and alter them. They took musical notes to use for advertising, and didn't pay the owners for them.

    Maybe I'm spitting into the wind here.

  77. babaganusz says:

    This is not a case where you need to strain to come up with an interpretation of the Goldieblox lyrics to find a parody of the work itself.

    i would certainly hope not.

    But I wouldn't let it trouble me in this circumstance that this was an advertisement for something else.

    fair enough.

  78. Gabriel says:

    If a starving artist had written the Girls parody as a work of social commentary, that would pretty clearly be protected fair use.

    Would the artist then be allowed to license the transformed work to Goldieblox to use in their ads?

    If so, does the fact that the starving artist was drawing a salary from Goldieblox the whole time have any legal relevance?

    My sympathies are with the Beasties in this case, but I'm not certain that my sympathies are legally correct. (I'd certainly take a hard look at making an estoppel argument based on the Goldieblox TOS, though.)

  79. Jon says:

    @Gabriel: IANAL, though I've read a lot about copyright, but I think the answer to "could the starving artist license modified lyrics to Goldieblox" is yes — but with the caveat that, if you're assuming licenses are needed, Goldieblox would also need a license to the underlying work (and especially the music, which was used essentially unchanged; whether a license to the original lyrics would be needed is debatable).

    As to the salary question, it's a whole rabbit hole involving "works for hire" which becomes largely irrelevant if GB were to pay to license the work (implying it was created on the starving artist's own time, and outside any possible employment contract terms). In other words, it's way too complicated and depends on too many details for a hypothetical within a hypothetical.

  80. n4zhg says:

    Weird Al gets consent as a courtesy. It is not strictly required.

  81. Mike says:

    What I find oddest about all of this… I always assumed that the original lyrics were entirely tongue in cheek, because they were so over the top.

  82. Charles says:

    Tracy – I'm simply saying it isn't a binary. It is a close case. I agree that the factors tilts in the Beastie Boys favor under current law – though I wish that wasn't true. I prefer a much broader definition of fair use. That it is part of an ad doesn't make it per se not-art as a matter of law (though in my own mind it does as a matter of taste).

  83. Eli the Bearded says:

    Paul Hartzer wrote:

    It sells a product that's openly critical of misogyny in the toy industry. Selecting a song that's overtly misogynistic would seem relevant.

    "GoldieBlox and the Parade Float" product description:

    Goldie's friends Ruby and Katinka compete in a princess pageant with the hopes of riding in the town parade.

    Because toys encouraging girls to think of themselves as princesses who are in need of public adoration is such an empowering concept and not at all playing into girls-should-be-pretty toy industry misogyny. Barbie has been at least as critical of "misogyny in the toy industry" by showing women can be single, gainfully employed in any job they want, and don't need kids.

    I'm not a lawyer, and I have no ox gored here, but I don't think GoldieBlox has any claim to a high horse. My initial reaction to this whole thing was "That would have work as parody if it weren't a commercial" which seems echoed by more informed opinions such as Tracy's above.

  84. Kirk Taylor says:

    This dispute screamed for a compromise solution. Apology for not being sensitive to a dead man's wishes, maybe some charitable giving to a good group both agree on and permission to use the song. The only winners here are going to be lawyers.

  85. Wondering says:

    Eli the Bearded, that's a partial quote from the parade float description. Here's the whole thing:

    In this much-anticipated sequel, Goldie's friends Ruby and Katinka compete in a princess pageant with the hopes of riding in the town parade. When Katinka loses the crown, Ruby and Goldie build something great together, teaching their friends that creativity and friendship are more important than any pageant.

    -A book series plus construction set introducing Ruby, Goldie's best friend and princess-turned-engineer.
    -Builds spatial skills, engineering principles, and confidence in problem-solving.
    -Comes equipped with 9 design ideas, a DIY project, and unlimited building possibilities.
    -Compatible with all other GoldieBlox toys.

  86. jtf says:

    The idea that the BB have some right to prevent their work from being altered for advertising purposes seems, IMO, to clash with the common law conception of copyright. We're not talking about droit d'auteur here; there is no recognized moral right on the part of the author to prevent the use of derivatives of their work that is separate from their property rights.

  87. PeeDub says:

    I'm with Gabriel on this. The song itself seems to be clearly a work of parody. Does the fact that the song was not released separately before being used in a commercial matter at all?

    Could someone license "Eat it" in a fast food commercial without paying Michael Jackson?

  88. AlphaCentauri says:

    I think it's important that using a song in a public performance is not treated the same as using a song in a commercial. We expect performers to be able to use a copyrighted work if they pay the licensing fee, no questions asked, and often as a bulk yearly license to use all works from a particular publishing group like ASCAP. But approval for using a song in a commercial is not automatic at all. Many artists do not permit such use at all, and everyone deals with that. It can be interpreted as an endorsement of the product.

    In this case it was a parody, so there might be less of an implication that the Beastie Boys are endorsing the product. But given that the label for the song includes the Beastie Boys' name, and that it does not include the names of the people who wrote the lyrics or performed the song, I suspect that most people would be surprised to find out the Beastie Boys had not provided authorization to use the song.

  89. Matt says:

    So apparently their use of copyrighted works in their videos is not limited to just this case.

    http://blogs.reuters.com/felix-salmon/2013/11/26/goldieblox-fair-use-and-the-cult-of-disruption/

    They used a Queen song, without permission, in a previous video. (And that one was not any kind of parody.) Honestly, this is sounding more and more like a case where they thought they wanted to be in court because they thought it would be good PR. They may be right.

    There isn't a ton of downside for them here. They are fighting the good fight. They are showing off for potential investors. And they are getting an enormous amount of press. Some of it is bad press of course, but for a start up even bad press is better than nobody hearing about you.

  90. Simon says:

    jtf: common law copyright is not at issue; the right in question would be the exclusive right to produce derivative works under 17 USC §106 (2); the only exception that could apply is Fair Use (17 USC §107).

    PeeDub: As I noted above, Campbell explicitly notes that "[t]he use, for example, of a copyrighted work to advertise a product, even in a parody" is a negative when looking at the first factor in the fair use analysis. If the GB parody had been created independently (which would seem quite clearly to be fair use), the use of the parody in an advert would either require authorization from all copyright holders, or a separate finding of fair use.

  91. Brad Hutchings (@BradHutchings) says:

    On fair use, I'll find this interesting whatever is decided. The thing I'm most uncomfortable with though is the implied endorsement. I really don't care how politically correct your product is, if you're weaseling out an implied commercial endorsement and not asking or paying for it, you're an absolute jerk.

    Perhaps the right settlement here would be for this company to display a message that its product is not endorsed by the BB in the ad that uses the song. Then, I think, both sides would really win. The company could continue to "fight the man", and the BB would not have offered an implied or explicit endorsement with or without compensation.

  92. David says:

    Update: GoldieBlox has, apparently, made the original video private and uploaded a version with new music.

  93. Sassafras says:

    In boxes colored the most adorable shade of pink.

    You must have seen different boxes than I did, because the first set's box is orange-red and gold with a single pink stripe in the background and some pink in the lettering, while the second set is dark purple, gold, and lavendar with no pink at all. Try comparing it to this Disney Princess tea set if you want to see true pink overload.

  94. Robin says:

    Is there a competition going on to pen the most patronising lecture on copyright law to the guys who made Paul's Boutique?

  95. jtf says:

    simon: I'm aware of that; I was merely commenting on the aspect of the BB's complaining about the use of their works in a manner in which they disapprove, separately from the property rights aspect of copyright. My point was that the moral rights aspect of copyright in civil law has never extended to Anglo-American copyright law, and bringing it into legal discussion seems bizarre.

  96. Dutch says:

    Something important that's been lost in the mentions of Weird Al parodies, is that yes he does ask permission out of courtesy but most importantly he pays his royalties to the artists. As for Goldieblox, I side with the Beasties. Not only from Adam Yauk's wishes but their fair use argument seems weak to me, sounds like the company is saying that it's ok for someone to hack my bank account as long as they think about giving the money they steal to charity.

  97. Craig says:

    I'm happy to stand corrected, but I was under the impression that the original Beastie Boys song was, itself, parody of sexist lyrics in music? Not that this changes the legalities of the issue, but relevant to the article if so?

  98. andrews says:

    Does moral rights trump fair use? If someone makes a parody of a work, but the parody goes against the author's wishes, can that be shown to not be fair use

    If you answer this in the affirmative, you will certainly accomplish a great reduction in the amount of parody available. Indeed, every blow-hard with a thin skin will happily object to your parody as being against his wishes.

    Of course it is possible, as the Court said in Campbell, that a scathing parody could essentially kill the demand for the original work. A thin-skinned author is particularly likely to find such parodies against his wishes.

    I have a really hard time with "moral rights" allowing one to evade criticism. Shall we also have permission from King George to write the Declaration of Independence?