Law, Technology & Arts Blog

Boys v. Girls

Posted in Intellectual Property, University of Washington School of Law by LTA-Editor on December 2, 2013

goldiebloxBy Annie Allison

One rapper’s dying wishes may sabotage toy company GoldieBlox’s parody of the Beastie Boys song “Girls.” Both sides are getting no sleep while arguing the merits of fair use to protect a commercial recasting of the sexist 80’s track as an empowerment anthem for young ladies.

The internet has been in an uproar for weeks over toy maker GoldieBlox’s YouTube video showing young girls building a Rube Goldberg–style machine to the tune of the Beastie Boys’ 1989 rap song “Girls,” with altered lyrics making it clear that girls can do more than “do the laundry” and “do the dishes.”  GoldieBlox, which has used versions of songs by Queen and other pop artists in its previous online videos, posted its now controversial commercial, titled “Princess Machine,” on November 17th and garnered more than 8 million YouTube views in just ten days. Following threats from Beastie Boys lawyers, the GoldieBlox legal team filed a lawsuit in the United States District Court asserting its right to use the music in the video under the doctrine of fair use.

Now, after a “colossal copyright kerfuffle,” GoldieBlox has replaced the old video with new version featuring the same images set against a generic tune, transforming their once-inspiring empowerment message into just another standard YouTube clip. See the new, arguably boring video here: http://www.youtube.com/watch?v=IIGyVa5Xftw#t=49

At the heart of the takedown decision is a fight over fair use in copyrights when mixed with commercial speech. GoldieBlox claims it “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 that the video “has been recognized by the press and the public as a parody and criticism of the original song.”

In their November 25th open letter to GoldieBlox, the Beastie Boys called the video impressive and made it clear that the group strongly supports empowering young girls and fighting gender stereotypes. However, the group did not mince words in restating their principaled position:

“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.”

In fact, the group’s position on the commercial use of its music has been, in a sense, settled for eternity. Before Beastie Boy Adam Yauch, passed away last year, he specified in his will that his image, music and any art he created may never be used for advertising.

When GoldieBlox announced they were taking “Princess Machine” down, they explained that their sense of humanity was stronger their need to be right. “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.” GoldieBlox says they’ll consider withdrawing their suit if the Beastie Boys call off their lawyers.

If the suit does go forward, a judge will have to look at four separate factors to determine whether “Princess Machine” is in fact fair use. Among these factors the purpose and character of the use, including whether the use is for commercial purposes; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market.

Courts tend to collapse these fair use factors into two questions: (1) is the use transformative—that is, does it add value to and repurpose the work for a new audience—and (2) is the amount of material used appropriate to achieving that transformative purpose?

Most judges understand that parody, a form of fair use which GoldieBlox claims in defense, demands a fairly extensive use of the original work. But the sticking point for GoldieBlox may be that “Princess Machine” is expressly designed to sell toys, and thus is a commercial endeavor at least as much as it is a sociological statement. That said, commercial uses can still be fair uses, and can still be parodies.

GoldieBlox’s quick change of heart has left some commentators wondering whether this was a real copyright controversy or just a slick marketing campaign. Regardless of the company’s motive, it has provided a soapbox for copyright commentators to argue the value of fair use. “[I]n this particular instance, the Beastie Boys are wrong,” says xojane.com’s S.E. Smith. “The celebration of their fight against GoldieBlox is missing a key component of the situation here, which is that the GoldieBlox video, which [is] perhaps not ethically defensible given the expressed wishes of Adam Yauch, could very well be perfectly legal. And you should want it to be, because fair use and transformative works lie at the heart of so much of art, culture, criticism, and society . . . [t]ransformative works expand the discussion, enlarge our world, and create new and beautiful works of art that enrich all of us.”

Still, others say it’s not fair to blame the Boys! They are merely two surviving band members honoring the wishes set forth by their dear friend in his will. And while the Beastie Boys risk looking like they’re censoring a worthwhile message, it’s difficult to protect your intellectual property if you’re willing to look the other way now and then based on ideology or pressure from the public.

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