GoldieBlox vs. Beastie Boys – Fight For Your Right To Parody?

By December 9, 2013 14 Comments

It’s that holiday season again: that special time of year when families come together to … buy all the things. It’s the time of year when toy advertising just goes bananas. Every toy brand is vying to be that one must-have toy this year, and their advertising is kicking into high gear. GoldieBlox, Inc. is one such company, intent on disrupting the toy scene with a new line toys for girls (pink! ribbons!) designed to spark their interest in engineering.

They were quite successful in creating buzz for their toys, in part because of the growing interest in getting girls into engineering, but mostly because of their really awesome ad.

The ad included a new version of the Beastie Boys song “Girls”, with new music played on toy xylophones and some switched up lyrics sung by girls complaining about the lack of non-pink, non-doll toys for girls. Unfortunately, GoldieBlox didn’t get permission from the Beastie Boys to use their song, and the Beastie Boys didn’t really appreciate that. Thus was born an internet copyright controversy.

There’s been a lot of misinformation and misunderstanding of the law floating around on Twitter, blogs, and even in the mainstream media about this issue. I’d like to clear some of it up. I’ll cover the main issues here, but if you have any more questions, I’m happy to answer them in the comments.

**First, let’s all get on the same page on the basics. So, what is copyright?**

Copyright is a right granted generally in the US by the Constitution, and specifically laid out in law passed by Congress. Copyright is designed to promote the creation of artistic and creative works by giving creators a way to make money off of their creations, granting a legal monopoly to creators of work that gives them exclusive rights to use, display, copy, etc. the work for a “limited” amount of time. To qualify for copyright protection, the work must be original, minimally creative, and “fixed in a tangible medium of expression.” There’s nothing that you have to do to get copyright protection for a qualifying work. It just magically happens. Draw a doodle on a napkin? Poof. Copyrighted. Write a haiku in a tweet? Shazam. Copyrighted.

Copyright grants ownership over an expression of an idea. “Hang on,” you might be thinking, “I thought we had a little something called freedom of expression in this country!” And right you are. In order to balance the ownership of expression granted by copyright and the freedom of expression guaranteed by the First Amendment of the Constitution, courts, and later Congress, have carved out an exception to copyright ownership: the Fair Use Doctrine.

Courts look at several factors in a case of alleged copyright infringement to determine if the unauthorized use of the copyrighted work qualifies for the exception. No one of these is in itself determinative. They will also be evaluated slightly differently in different courts around the country. The way our federal legal system works means that the same set of facts might be looked at slightly differently in a court in California and one in Massachusetts.

**Now that we’ve covered the basics of the law, let’s apply it to this GoldieBlox/Beastie Boys situation.**

The first question is always whether there’s a copyrighted work. The Beastie Boys’ song “Girls” was recorded, which counts as fixation in a tangible medium of expression. Check. I’m going to vouch for it being minimally creative. Check. Lastly, it is also original. A lot of the Beastie Boys’ music contains direct samples from other songs. The melody for “Girls” seems to be quite similar to the melody of Bo Diddley’s “I’m All Right”. But it is important to note that the use of direct samples, or the use of similar melody lines does not negate the originality of the work as a whole. Even songs or DJ tracks that contain only already existing songs can still be original as a whole. So, as a whole, “Girls” is original. Check. The song is copyrightable, and copyrighted.

Second question: was there an unauthorized use of the copyrighted work? Copyright gives a “bundle of rights” to the creator. One of these is the right to make derivative works, which is what happened here. The version of “Girls” that GoldieBlox made was based on the Beastie Boys’ version, but with different words, and rerecorded music. The creation of the derivative work was not authorized, which is pretty clear from the open letter to GoldieBlox from Ad-Rock and Mike D.

We’ve established the potential for copyright infringement, now let’s look at fair use.

**Can a commercial use be fair use?**

A lot of people have fixated on the fact that GoldieBlox used the song in a commercial, and declared that fair use does not apply. But that hasn’t been the law since the 1994 Supreme Court case Campbell v. Acuff-Rose. This is one of those cases that makes me really like practicing law. In Campbell, the U.S. Supreme Court looked at th issue of whether the 2 Live Crew version of “Pretty Woman” was fair use of Roy Orbison’s original “Oh, Pretty Woman”. Yep. The lyrics to a 2 Live Crew song have been carefully analyzed and immortalized in a Supreme Court decision.

In Campbell, the Supreme Court rejected the old bright line rule that said a commercial use of a copyrighted work automatically wasn’t fair use. Instead, they ruled that commercial use on its own wasn’t enough to throw the possibility of fair use out the window.

**What about the Parody exception?**

Fair use protects people’s free speech rights to create parody works without permission from the original artists. Many people have decided that the GoldieBlox version of “Girls” was a parody, and therefore protected by fair use. I disagree.

In fair use law, there is a distinction made between parody and satire. Parody is protected by fair use, satire is not. The difference is (according to judges) that parody is a use that makes fun of the original work, and satire makes fun of some outside thing. The reasoning is that when creating a parody, the creator won’t be able to express what they want to express without using the original work, and since the new work makes fun of the original work, the copyright owner is unlikely to license it. So, in order to not infringe on the parody creator’s free speech rights, the courts have to make an exception to the copyright owner’s right to control the use of their work. On the other hand, satire is just a convenient use of an existing copyrighted work to make fun of something else.

The Supreme Court decided the Campbell case largely on the parody issue. They found that the 2 Live Crew version of “Pretty Woman” was making fun of the original version, and therefore was a fair use parody. In the case of the GoldieBlox version of “Girls”, some people have said that it is a parody making fun of the original Beastie Boys version of the song and their attitude towards women as expressed in the song. If you look at the lyrics to the GoldieBlox version however, it is pretty clear that it is targeted at making a comment on the state of the toy industry and marketing towards girls, and not targeted at making a point about the Beastie Boys song itself. So, I don’t think that the parody exception applies in this case.

**Isn’t this kind of stupid?**

Yes. This is absolutely stupid. My personal opinion on the parody/ satire distinction in copyright law is that it is an artificial distinction created by judges, and doesn’t really make any real world sense. If GoldieBlox wanted to take this case on up to the Supreme Court and argue that fair use should apply even though it is arguably not a parody, I would be all for it. The biggest problem with the parody/satire distinction is that it is really easy to shape the facts of any particular case to make it seem like parody or like satire. In fact, in Suntrust v. Houghton Mifflin (a reinterpretation of the novel “Gone with the Wind” from the slaves’ perspective) two courts looked at the same exact facts and one found the use to be satire, one to be parody. The distinction between parody and satire is hard for courts to apply consistently, and nearly impossible for creators of derivative works to predict. The dichotomy itself creates a chilling effect on free speech.

All in all, I think that GoldieBlox version of “Girls” should be considered fair use, but under current law, I don’t think it falls under the parody exception and wouldn’t be considered fair use.

**Why did GoldieBlox sue the Beastie Boys and not the other way around?**

One interesting twist to this controversy is that even though GoldieBlox was the one accused of infringing the copyright, they sued the Beastie Boys. This is pretty normal in situations like this, and is just a legal procedural issue. What GoldieBlox did is ask the court to look at the facts and make a declaratory judgement that GoldieBlox was not infringing on the Beastie Boys’ copyright. This is actually a really helpful thing for people involved in copyright disputes. If someone accuses you of copyright infringement and threatens to sue, say, in an open letter on the internet, you can just go straight to court and get it sorted out — you don’t have to wait around for them to sue you. This is also why if you threaten to sue someone in writing, you’d better really mean it.

**Has this all been resolved now?**

It looks like it. GoldieBlox has pulled the offending ad and apologized. I think this is a smart thing for them to do. When you’re facing a lawsuit, it’s important to really evaluate what your objectives are. Sometimes, an artist will be willing to risk a lot to stand up for their right to create their art. But sometimes it just comes down to money. Even if you win, a copyright lawsuit might drag on for a long time, and cost a ton of money. My guess is that GoldieBlox’s objective with their “Girls” version was just advertising. Mission accomplished on that front. There’s no real reason for them to keep fighting if they don’t have to.

**What about about Adam Yauch’s will?**

One of the Beastie Boys, Adam Yauch, passed away in 2012 and included in his will the direction that none of his artistic works be used in advertisements in any way. Whether or not this is actually enforceable is a whole other can of worms, so I won’t get into it here. But even if it is enforceable generally, it doesn’t actually come in to play in the question of fair use. A creator of a copyrighted work can put all sorts of restrictions on licensing in their will, but that will not touch on other creators’ freedom of expression-backed rights under the fair use doctrine. But from a PR perspective, going against the wishes of one of the original creators of the work was not a good move for GoldieBlox, and was ultimately the reason they gave for pulling the ad.

**So what does this mean for me?**

The most important thing to learn from this is that there are few bright line rules when it comes to fair use. Using a copyrighted work in a non-commercial way, or being a non-commercial or nonprofit organization won’t automatically get you fair use protection. The commercial impact of the supposed fair use is definitely taken into account, but it is only one piece of the puzzle. You’ll have a slightly better case if it is a non-commercial use, but it isn’t enough of a difference, in my opinion, to count on that to protect you. Honestly, I think a bigger factor than the legal issue is the potential for bad PR from a copyright holder if they sue some poor nonprofit.

Copyright law, and the fair use doctrine in particular, can be pretty tricky. There are multitudes of factors to be looked at for different situations and claims, and they may be looked at differently by different courts around the country. There’s no surefire way to predict what a court will decide on these issues, but the closest you can get is to talk to a good attorney beforehand.

Most lawyers will tell you that the only way to make sure you’re not infringing someone’s copyright is to not use anyone’s copyrighted work in your work. That may be true, but it’s no way to live. If you find yourself in a situation where you want to use someone’s copyrighted work in a way that you think is fair use, talk to an attorney that is willing to work with you to find the safest way to go about doing it. If you’re worried about money, still give an attorney a call. Many attorneys will listen to what your issue is and will be able to give you an estimate of what it will cost for them to research it and advise you. It may be cheaper than you think. Also, many communities have organizations of volunteer lawyers for the arts, who will give free or low cost consultations to artists on copyright, trademark and many business issues.

This is not, and should not be taken as, legal advice. If you want legal advice, please hire a lawyer.

IMAGE CREDIT. [Wikimedia Commons].


Author Brady Kriss

Brady Kriss is an attorney with a passion for intellectual property law, internet law and privacy law. Her internet-based law practice provides legal and consulting services for creators of art & code.

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