Following a glorious and heroic display of treacherous boardroom betrayal and underhanded backstabbing, ChangelingMedia is proud to have once again usurped full control of the body corporate from the dangerously ethical and socially conscious direction of ChangingMedia. Be not afeard for the well-being of our ousted colleagues: we are assured the fetid pit into which they have been cast has a fulsome supply of grubs and salty but potable tears, and that they will have ample opportunity for glory when pitted against each other in the arena in gladiatorial combat.
As our first order of business, ChangelingMedia is delighted to have been commissioned by the good people at Americans for Responsible Apathy (not to be confused with Amalgamated Profit, with which it is no way affiliated or associated) for a new and sorely-need campaign to address a pressing problem among today’s youth. A growing number of our young people today are trapped in a state of dangerously heightened moral concern and social awareness, known to the kids as being “woke.” It is well documented that “woke” young people are more prone to engage in protects and mass actions for social change. They are more likely to be angry at perceived injustices. They could even change the world.
With our strong commitment to the deepest values of chaos and inequity, ChangelingMedia simply could not allow this to go on. And so we are proud to announce the debut of a lovable furry friend to bring your precious children back into a state of tranquility and passivity. Meet the Don’t Care Bear:
Anytime your child feels the need to tackle the world’s most pressing issues, tell them to give the Don’t Care Bear a snuggle. When your little one is afraid of massive storms and rising oceans that might make the planet unliveable for generations to come, pass them the Don’t Care Bear so they can feel that warm fur against their cheek that’s as a cozy as a rapidly heating climate. And don’t worry — we’ll be infiltrating your children’s cartoon shows and favorite YouTube channels to bombard them with advertisements. So just sit-back, relax, and wait for your little angels to come bounding in screaming “Mommy, daddy, I don’t want a future. I want my Don’t Care Bear!”
With the scourge of wokeness gone, marauding corporations and corrupt governments will be free once again to prey on humanity with impunity. But this nightmare scenario won’t give your kids bad dreams, thanks to a few wise words from the Don’t Care Bear. That’s right — this bear can talk, he’s a regular Teddy Fact-Spin! “Everything’s better now,” Don’t Care Bear will whisper, lulling our next generation from their woke state into a blissful and compliant stupor. “You don’t need to change a thing.”
We are happy to announce that all control of ChangingMedia is now firmly in the hands of ChangelingMedia once again. The staff was lured into a closet with the promise of sloth cuddle time this morning. After a small scuffle, they will now remain trapped there for the rest of their natural lives. ChangelingMedia is excited to shift the company’s environmental focus to deal with an important and lucrative issue in today’s day and age: carbon.
While the good folks at ChangingMedia might have told you before that carbon was a bad thing for you and the planet, we at ChangelingMedia have received millions of dollars from undisclosed locations to convince you that carbon is your friend. We’re excited to announce our new campaign to change the face of climate change: Global Warming: It’s Just Carbon Giving the Earth a Giant Hug.
Give your family the gift that keeps on giving. When you use coal, you are committing to make our planet warmer for generations to come. The extreme weather caused by climate change will keep your family inside, leaving more time to snuggle! Feel the warmth of a rapidly warming global climate. Here’s hoping Santa DOES leave a lump of coal in your stocking this Christmas!
After being threatened with a hakapik, the staff has exclaimed that they are delighted with this new direction. They thanked their overlords at ChangelingMedia for locking them in a closet without food for days because it has produced their best work yet. We are so excited for future campaigns like Coal Warms Your Heart, Fossil Fuels ♥ You, and Mother Earth is a Bad Friend Who Talks About You Behind Your Back.
We are delighted to announce our takeover and replacement by ChangelingMedia™. ChangingMedia is no more, its corporate body having been filched by fairies at the stroke of midnight to serve the cruel whims and strategic communications needs of his imperial majesty, the Goblin King, doomed to toil forever as perpetual slave to his eternal holding company in the mysterious, cobweb-strewn Enchanted Woods®.
We look forward to implementing ChangelingMedia’s exciting vision of appearing eerily similar to the company we replaced like a newborn babe in its crib, while spreading mayhem and mischief and poisoning the very air you breathe with our soulless malevolence.
Welcome to Tel-Aviv International Airport, and to the newly launched campaign ChangingMedia has been working on for Tel-Hai College in the Galilee! The multimedia campaign will roll out across digital and print channels over the next few months, showcasing the innovative, pluralistic vision for the future Tel-Hai is pioneering. We’re delighted to be part of such an inspiring project.
So here’s an immodest proposal: why not make poverty pay? Or, to put it more precisely, why not give eradicating poverty some clear market value? If Buffett is willing to reward a lucky guess with an astonishing fortune, how about a billion bucks for the person who alleviates the wretched conditions of the most unfortunate? Why is that not a bet worth making?
As it stands today, the fight against poverty is driven by charity and goodwill. Any kind of profit motive is considered unseemly. Helping the poor is a testament to how much you care, in which effort and good intentions are applauded no matter the result. It’s where scoundrels go for redemption and goodie two-shoes go for a spit-shine ethical polish. If we fail, no-one loses, other than the poor of course. It’s not as if anyone’s going to lose a billion dollars over it, or a shot at a billion dollars.
There’s no doubt that anti-poverty crusades are noble, Buffett’s own efforts included. But while we’ve made gains in reducing global poverty (largely due to China’s industrialization), this system on the whole doesn’t work very well. How could it? It’s based on the kindness of people’s hearts, and kindness doesn’t pay the bills or get me a shiny new iPad. That’s not a condemnation; it’s just a fact.
The profit motive is one of the most powerful forces known to human history. It drives capitalism, moves mountains, and conjures fierce competition, economies of scale, creative destruction, iconoclastic visionaries and innovative ideas. Some would say it’s the cause of poverty in the first place (including Buffett’s own son) but good luck extirpating it. Instead, why not try to harness it?
So how would this work? Well, pick a metric. Any metric. Malnutrition, household income, a solid roof over a child’s head – whatever suits your fancy, or a billionaire like Warren Buffett’s. That metric now equals revenue – this much poverty reduced equals this much money, like a bounty for the death of a rogue gunslinger or a unit price. Appoint an auditor to impartially determine whether gains have been made. Pool the money from as many billionaires and corporate behemoths (and governments) as necessary to create the payout fund. Announce, award, repeat.
Before this starts to seem implausible, consider the precedents. The Google Lunar X Prize will award $20 million to the first team to land a robotic spacecraft on the surface of the moon. We’ve spoken in this space before of the need for a moon-shot for justice, “a space race for social change.” Well, what’s more worthwhile? To put one small unmanned drone on the moon or take a giant leap forward out of poverty for all mankind?
Only that space race can unleash the energy and ambition we need to radically impact poverty. Whether it’s cheap, sustainable generators for the developing world, a farming system, or a jobs scheme, the prospect of riches would attract the best and brightest and encourage the most effective and efficient solutions so as to maximize profits. Entrepreneurs could take on venture capital in anticipation of reaping great rewards. “Social return on investment” would finally have real meaning rather than a fuzzy feel-good vagueness. Anti-misery magnates and transformative tycoons would take greater risks and try bigger ideas. Wheat would separate from chaff.
As one participant at the Ashoka Globalizer on Economic Inclusion said: “wouldn’t it be great if ‘billionaire’ was re-defined to mean someone who had improved 1 billion lives?” Yes, but wouldn’t it be even better – and a greater incentive for greater solutions – if that person could make a billion dollars from improving those billion lives? It seems odd that the rewards for helping to rid the world of the scourge of poverty should be dwarfed by the proceeds from creating the Shake Weight or the ShamWow!.
The Nobel Peace Prize cash award won by Muhammad Yunus was about a million dollars for a lifetime of battling poverty. Warren Buffett makes more than that in an hour. The Hult Prize gets closer: “the annual competition aims to identify and launch the most compelling social business ideas—start-up enterprises that tackle grave issues faced by billions of people. Winners receive USD 1 million in seed capital…” But that’s still chump change. And for the most part we get this: “By taking part in Activities, students can earn points on their way to become an Anti-Poverty Crusader. We will share the hard work of the winning school via our website, email database and social media. In addition, your school will receive a framed copy of one of the photos featured in the Make Poverty History photo exhibition.” Hardly a Lamborghini and a solid gold jet, or the cover of Forbes magazine.
Think of all the anti-poverty start-ups that might emerge if kids knew those points could be profits. Better yet, think what a person living in poverty might do if we weighted the rewards even more greatly for the poor to create those businesses and ideas themselves. There’s nothing to be lost with this model – the risk is entirely on the entrepreneurs and their backers; no results, no payout. Sticking with the current system is far more of a risk. The poor will continue to rely on the largesse of the rich and languish in the back of our minds as a guilty afterthought. Selfishness will run rampant and charity will continue to be seen as a speeding ticket or a piddling penance on the way to acquiring sybaritic fortunes.
Solving poverty is currently a hobby of the wealthy, let’s make it an industry for the innovator. Let’s make it everyone’s business, and whether or not it’s our problem, let’s make it our profit, until there’s nothing left to gain. Let Warren Buffett bet us all that we can’t eradicate poverty and have him pay out for our million and billion-dollar ideas. On reflection, the wealthiest might consider this quite a modest proposal. Because the only other solution for the poor masses gorging on the air promise-crammed and told for centuries to eat cake might just be to eat the rich.
What are you doing this Sunday? I have the good fortune to be moderating a terrific panel on food justice with a city councilman, a celebrated urban farmer, a vegan soul goddess, a champion in the war against hunger, and the city’s food access mastermind. The panel will follow a screening of Byron Hurt’s documentary, Soul Food Junkies, which is a truly lyrical and profound exploration of the role of food in African-American life and its complex power to both sustain and destroy.
Come join us for a great opportunity to learn more about Baltimore’s struggle for greater food justice.
ChangingMedia is proud and delighted to be an official sponsor of Purim Pandemonium: Art Comes Alive! Come celebrate the carnival of mischief and chaos dressed as your favorite work of art, sip Artinis with the Mona Lisa …
We’ve all heard it. Many of us have said it. It’s a plea, a prayer – uttered so often it’s damn near a mantra:
“We’re not just The Wire.”
Baltimore wants nothing more than to be seen as something other than a byword for crime and decay, for poverty and violence. We’re not just the wasteland made notorious by David Simon’s landmark series, occupied by drugslingers and sociopathic murderers and sicklied over with impenetrable despair. That’s just the image that’s been conjured up in the public imagination, we say. We’re sick of people’s eyes growing wide in horror when they hear what city we live in, the inevitable questions … “Is it like that? Is it just like The Wire?”
In the past few weeks here at ChangeEngine, we’ve been debating what might “save” Baltimore from a present and a future where so many are condemned to a shadow existence and forced to the margins by poverty and inequality. And yet it seems like what Baltimore wants to be saved from most of all is itself, to be delivered from the stain on our reputation, the shame of The Wire; to shunt those things that cast an ill light on our collective existence back into the shadows.
But that shame, left unchecked, will destroy us. If we truly want to save Baltimore, to save ourselves from the perpetual instability of illusory wealth and the criminal waste of lost promise; if we truly want to fulfill Dr. King’s vision of a “beloved community” rather than languish in the spiritual poverty of a divided society, we must not be ashamed. We must not shy away from what The Wire represents and the heavy burden it lays at our door … because we are The Wire and we need to own it.
What we’re saying when we deny The Wire is that we’re not just ‘those’ neighborhoods, not just a city of poor black people embroiled in the drug war. In trying to sweep those people and places from our consciousness, we not only caricature what The Wire actually depicted but fail to heed its prophetic call. As David Simon said:
“[T]hat’s what The Wire was about … people who were worth less and who were no longer necessary, as maybe 10 or 15% of my country is no longer necessary to the operation of the economy. It was about them trying to solve … an existential crisis. In their irrelevance, their economic irrelevance, they were nonetheless still on the ground occupying this place called Baltimore and they were going to have to endure somehow.”
When we say we’re not The Wire we’re saying we should be like one America, and forget the other. And that we can only succeed if these people, this other Baltimore, disappears. But that’s impossible, it’s unsustainable; it will undermine the very future we hope to create by ignoring the things that horrify and embarrass us. The ONLY way we can make Baltimore not just about The Wire is by embracing the story it tells about us.
“See, back in middle school and all, I used to love them myths,” says Omar, the predatory gunslinger who roams Baltimore’s streets like a swaggering pirate as he schools a sheriff’s deputy about the Greek god of war. So complete a work is The Wire, so vivid and eternally real are the likes of Omar, Stringer and Bubbles that these offending shadows have become our mythology, our epic.
Whether it’s Omar resplendent in a shimmering teal dressing gown, scowling at the terrified ‘puppies’ who fling their stashes his way on his early morning hunt for Honey Nut Cheerios; Clay Davis’s sheeeeeet! stretching on to the last syllable of recorded time; a forensic epiphany derived entirely from a dialogue of f-bombs; the death of Wallace, of Bodie and Sherrod, of Prop Joe; the fall of the Barksdales, Dukie’s descent or Cutty’s redemption – these moments confer an identity that’s deeply ours, as iconic and intrinsic as Poe’s mournful features and gutter requiem.
This is our story, an epic of the American post-industrial city struggling for existence and meaning where all sustaining truths and certainties have been annihilated. It has the power to unify our consciousness and to rouse us to collective action. The Wire didn’t focus on the “bad side” of Baltimore; it cast a glaring light on what was wrong with America. Its creators offered us a study of dysfunction and neglect – a diagnosis, a pessimistic prognosis, and no real hope of a cure. That part is up to us.
And yet the cures we’re presented with are largely exercises in denial – efforts to tell a different story rather than confronting and changing the one we have. We are told to ‘Believe’ in Baltimore, then beggar belief by proclaiming ourselves ‘The Greatest City in America.’ We swear up and down that we’re not The Wire, as though that wire is live and we dare not touch it.
In the standard gospel, salvation comes through expanding the ‘white corridor’ that runs along 83, pushing out the ‘bad Baltimore.’ The Grand Prix, the creative class, a shiny new development downtown – these are the pet miracles of urban renewal evangelism. But without justice, they can only be a mirage. Just as civil rights activists were willing to be beaten and bloodied because they knew that no-one is free unless all of us are free, not one of us can say he is truly wealthy as long as any of us is poor. As long as we’re erecting monuments to distraction, condo towers with a stunning view but no vision, we’ll be blind. No sustainable salvation can come of growing that privileged bubble. We’ll fool ourselves into complacency, into thinking we can ignore The Wire, and the bubble will burst.
In the starkest of terms, black (and poor) people are being arrested and incarcerated, their lives ruined, for something everyone does. And that is the greater cost. This war destroys families, robs children of their parents and leaves them destitute, cripples chances for employment and advancement, and causes young people to be murdered in the streets as they scuffle over turf in a society that gives them nowhere to call their own.
We can change that story. Think what all the resources squandered on this folly could do if devoted to social change, what dynamism could be unleashed. Think of what it would mean to reclaim all the talent and energy lost to the criminal justice system and to the miasma of distrust and despair that crushes and humiliates the spirit and leaves so many feeling that the game is rigged against them.
This is about more than just one policy. Just as we condemn an addict to the clawing, scraping chaos of the criminal underworld when we force him into the shadows, so too do we deny ourselves a brighter future and invite in all the ills we run from by denying what The Wire says about us. Baltimore could be the one city in America that truly confronts the issue of its underclass and the ravages of exclusion rather than pretending it’s not there and brutalizing it when it rears its head. We must resolve that we don’t want to run from The Wire, but rather change the system that generates those conditions.
The engine of salvation is not in our stars but in ourselves. We need a Manhattan Project for transformation, a space race for social change. Let’s work to provide the greatest rewards to those whose efforts most benefit the least well off. Let’s energize social change makers to move to Baltimore and cultivate those already here. And let’s start treating them like rock stars, not martyred idealists.
Baltimore doesn’t have a PR problem; we have a poverty problem. We don’t need a better image; we need a better way. We need to celebrate and attract those who want to make a difference, not engage in a desperate charade to prove we’re just the same. So Just Say Yes – we ARE the Wire. Only then can we change the story. Only then can we start building a city of which we’ll never be ashamed, a place where every one of us is truly cherished.
As a white person, I can only speak of undoing racism from that perspective. Therefore, in my opinion, in order to create real transformative change in Baltimore we have to educate ourselves and organize our institutions to help dismantle the structures in place that perpetuate racism. Racism is the cause of the inequity we see every day in Baltimore. In order to really begin to heal and change the city, we all need to understand the history and how racist practices still embedded in our institutions have created the disparities that exist today.
This is not a dynamic that can be shifted overnight but takes real effort and understanding of how the system works. Whites especially need to be engaged with other whites in this process. Racism is dehumanizing to all of us. We need a common definition of what racism is, an historical knowledge about what has happened since the founding of this country, and we need to look deeply within ourselves and our institutions on where we can organize and create impact.
For those of us who want to start but don’t know how, we can begin with conversations with others, and seek out knowledge from those with expertise. There are many resources that we can make use of right here in Baltimore – Baltimore Racial Justice Action, Equity Matters and the Peoples Institute for Survival and Beyond. But if we don’t even have the conversation, we will never be able to dismantle something that is truly destroying us all.
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.