GoldieBlox Sues Beastie Boys

[NOTE:  Since publishing this post, GoldieBlox removed access to its original video and has replaced it with a generic version absent any reference to the Beastie Boys song.]

I’d seen this video make the rounds on Facebook but didn’t know that it was at the heart of a new controversy regarding copyrights and fair use.  A promo for the innovative toy-making startup GoldieBlox, the video traces the path of an ingenious Rube Goldberg construct made of everyday household items and kids’ toys as the lyrics promote empowerment for girls.  All good except for one little problem:  the song is in fact “Girls” by the Beastie Boys, a band that determined in its earliest days not to allow commercial use of its works.  Atypically, though, the band wasn’t the first to file suit or even send a cease and desist letter.  To the contrary, as soon as the band made an inquiry into the use of its song, GoldieBlox sued them claiming fair use on the grounds that the video is parody.

I have two observations:

First, if the case were to go to court, it could be a big deal.  Parody or not, the spirit of fair use in this sense is meant for people or entities whose purpose is to create parody itself in the form of entertainment, not for producing commercials that sell products or promote brands.  Regardless of GoldieBlox’s noble mission to empower young girls, there’s no gray area here; this is a commercial for a company, and we cannot allow fair use to include any company simply boosting creative works at will.  Finding in GoldieBlock’s favor would be precedent-setting.  If that company can use a  Beastie Boys song without permission, then what’s to stop Koch Industries from rewriting the lyrics to “Imagine” for a brand identity video that also promotes the Koch Brothers’ social and political views?  It would just be parody of Lennon’s pro-communist song, right?

The second observation I have is a creative one.  The video is so brilliant, the message so strong, and the Rube Goldberg contraption so complex and fun to watch that I insist the video would be as effective and readily shared without actually using the Beastie Boys’ “Girls.”  For one thing, a parody of the original, misogynistic lyrics only resonates with a viewer who knows the source; and most parents of young children are probably a decade or so too young to have a lot of Beastie Boys in their subconsciouses.  Hell, I went to tiny little Bard College with Adam Yauch, and I wouldn’t have known this video was based on “Girls,” if I hadn’t read about it. But I still would share the video as a cool piece for its many virtues.

It can be hard to know why creative teams or executives determine that a commercial production needs to be based on some existing cultural reference.  Sometimes it’s essential to the concept and the message, sometimes it’s a misjudgment, sometimes it’s laziness, and sometimes it’s just ego.  One possibility in this particular case, given how quick GoldieBlox moved to sue the band, is that the company wanted to draw fire from the Beastie Boys, which if nothing else, would generate free publicity and more views of the video.  I hope this wasn’t part of the calculus; I like what the GoldieBlox brand wants to be for young girls and would hate to see the company act like old boys.

ADDENDUM:  Read Felix Salmon from Reuters.  Silicon Valley company being “disruptive” as  SOP and having nothing ultimately to do with the Beastie Boys or the rights of artists?  Could be.  I would also recommend Chris Castle’s piece on the subject and the issue of PR by Lawsuit (just in time for Black Friday!)

POST SCRIPT 7:00p EST: And then . . .the open letter apology from GoldieBlox that brings to mind the word cloying, particularly the “we’re just little, please don’t hurt us” implication considering the Beastie Boys had only made inquiries. It’s been interesting and encouraging to note that as this story has unfolded throughout the day, public sentiment seems to favor the Beastie Boys in this case.  Through all the mystifying nonsense about copyright these days, people seem to believe in the fundamental principle that creators do have a right to control the use of their works.

© 2013, David Newhoff. All rights reserved.

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43 comments

  • God, this one is complex. I keep changing my mind on it.

    On one hand, I am instinctively inclined to agree that the fact that this is a commercial advertising campaign makes it feel very different then most of the parody examples we can think of. I’m also aware that, while this seems to be a small company with a social agenda I’m generally in favour of, if this goes through, that isn’t likely to always be the case. What happens when Coors decides to parody Black Flag’s Six Pack to sell beer?

    And the company are definitely heavily spinning this one. As you point out, it was absolutely not the Beastie Boys who have brought this one to court. And from everything I’ve seen, they didn’t even imply that was going to happen. So this seems a cynical move by the company.

    It should be pointed out that there is spin from the other side however. GoldieBlox haven’t sued, they’ve applied for a declaratory judgment. That’s a very different thing. But, then again, that makes GoldieBlox’s move even more dubious to me; there was simply no need to raise an affirmative defense at this point and I question their motives for doing so.

    But then we come to, as you point out, the issue of precedent. And if this did come to court a precedent would be set either way. And, actually, a vast majority of the cases of “people or entities whose purpose is to create parody itself in the form of entertainment” have some form of commercial factor at play. Which is why fair use doesn’t solely limit itself to that consideration. Changing the definition so that is the deciding factor is not a minor change and would have serious ramifications. Which is partly the point I suspect- I don’t think it’s unfair to suggest that some of the people kicking off about this most heavily aren’t all that keen on fair use in principle. Instead, they’d like to see permission being needed for any use, parody or not. They have a perfect right to that view, but it’s not one I support.

    And it is the case that some of the people most up in arms about this are also generally heavily in favour of legal solutions to copyright issues. They just don’t like it when the law isn’t used in a way they want. This does feel like a case of the biter bit.

    It becomes even more complex when we look at your Koch brothers analogy. It’s easy enough for me to agree with you when it’s about people whose politics I despise. But then I start to think about whether I want to see a situation where Skrewdriver can sue Jewdriver. Or the Thatcher estate can put a stop to Maggie’s Last Party by VIM. (It heavily samples her speeches).

    But then again, I really am not keen on Urban Outfitter’s selling t-shirts with Joy Division on them. Which isn’t the same issue, but is linked I think.

    I also agree with you entirely on the artistic question. That’s just strange. Why would the company possibly parody a Beastie Boys track which is not only decades old, but is also one of the Beastie Boy’s lesser known songs? It simply has no cultural relevance, which makes parody pointless. But I’m not keen on the idea that the courts should be judging on “artistic merit” which strikes me as a very dangerous road to go down.

    So yeah, as I said at the beginning, I’m really not sure what I think here. The obvious disagreement I have with you is that this is not a grey area. It’s all a grey area.

  • This is just a case of a marketing dept. being ‘too clever for their own good’. Someone read “Guerrilla Marketing” and did a cost/benefit analysis; coming to the conclusion that lawyer costs would be less than the value of the free publicity they would gain by pulling this stunt.

    Seriously… would ANYone be talking about this thing if they hadn’t contrived some ‘free’ publicity by stealing then suing the victim? Granted the video is cute, but the message is beside the point.
    They are counting on peoples sympathy in the court of public opinion.
    This could have easily been a video against stomping on cute little helpless kittens for that matter, and have the same effect. it is disingenuous and plays the public for fools.

  • Good thing I’m not on the Jury. Unmistakably Beasties and used for commercial promotion = Infringement.

    EFF has the legal counter argument to David, which is informative. Though they decide Fair Use, they lay out the four tests well. (EFF downplays the commercial purpose aspect.)
    https://www.eff.org/deeplinks/2013/11/beastie-boys-goldieblox-fair-use-lawsuit

    “Girls” is an iconic Beasties tune: intro, verses and chorus. It was not an excerpt or sample.
    (BTW: The song is about the clueless man who utterly fails to get anywhere with women because _he_ is a misogynist. It is possibly the most feminist song on the debut album, which isn’t saying much.)

    Nor was it a parody as popularized by “Weird Al”, SNL and others. It is an ad for a product who hopes to gain from the association with the song. From GoldieBox’s own complaint
    “To introduce its toys to the public, GoldieBlox has created a set of promotional videos.”
    http://www.scribd.com/doc/186402972/Beastie

    You know I’m a supporter of Creative Commons, Fair Use proponent, and advocate for limiting Copyright to a reasonable time period. I am also a Marketer.

    Great examples all…

    • I realize that I left off the fact that the misogyny in “Girls” is satirical.

      • Satiricalish. It was from the era when the Beasties had cage dancers, so I’m not convinced their feminist credentials were quite fully developed at that point.

    • Anyone who reads my stuff knows I don’t trust the EFF and that I believe the organization’s interest in weakening copyright has nothing to do with benefitting the public and everything to do with benefiting Silicon Valley companies. But it is rare that they are so blatant as that insipid piece written by Corynne McSheery. She leads with a lie that the Beastie Boys accused GoldieBlox then presumes to “educate” everyone on fair use. Gosh, it’s almost as though the whole thing is a coordinated PR move — SV startup uses threat of lawsuit to stir up news (and sell some toys); SV mouthpiece jumps in to straighten the public out on fair use — all with the goal to keep repeating the message that “everything is fair use.”

      Let’s not waste too much time giving everyone his due in this “debate” because it’s not a debate anymore than evolution v intelligent design is a debate. Google and the world of companies it exemplifies want public support to weaken copyright until all content is “fair use,” at which point, as I say in the post, any company that wants to exploit any artist (i.e. smaller company) to any purpose will be free to do so. And what makes anyone think this rationale stops doing damage when all the artists are gone? It doesn’t. Ultimately, its about valuing human labor and allowing the biggest corporations to rule absolutely; and it boggles my mind how many progressives will buy Silicon Valley’s line which is no less destructive to their values than the Koch brothers.

  • The first thing I thought of when hearing about this was the Swiffer Wet Jet commercial with Devo’s “Whip It” (“Swiff it!” was the tagline, I believe). Mark Mothersbaugh said he OK’d the commercial because the whole idea “was so ridiculous”. (I agree with him, BTW). And he got a tidy sum from Proctor & Gamble I’m sure. Given the Goldiblox example, I wonder if P&G actually had to pay Devo at all. Seems to me a good lawyer, or even a bad one, could easily spin that ridiculousness into a fair-use parody.

    • I suppose the question would be whether the song in the Swiffer commercial actually parodied “Whip It” as opposed to simply capitalizing on a popular melody and rhythm. i.e. Does the Swiffer version actually comment on the content of “Whip It?”

      Of course, “Whip It” doesn’t contain much of a message as far as I can tell, so I’m not sure how one could go about parodying it in the proper sense.

      The Goldieblox song at least seems to comment on the content of “Girls,” that is IF you take the original song at face value and don’t view it as a parody of misogynistic views already. I’m not sure how that would factor into any legal proceedings, though.

      This is an interesting case and I find myself much in the same fence-sitting position as the first commenter here. The cynic in me thinks this attempt at cheap publicity by Goldieblox is obviously transparent, but on the other hand, that doesn’t preclude it from a fair use defense, in my understanding of the law.

      Regardless of what the courts say, considering that GB is trampling on the wishes of a dead musician who fought for a lot of causes I agree with, you can be sure that *I* won’t be supporting the company or their products in any way and will encourage others to do the same. Such a shame, because I take quite a bit of interest in female-empowerment and feminist issues.

      • Patrik-

        The cynic in me thinks this attempt at cheap publicity by Goldieblox is obviously transparent, but on the other hand, that doesn’t preclude it from a fair use defense, in my understanding of the law.

        And nor should it. Allowing courts to judge intent is a dangerous road to travel down. The law has to apply equally, even if people are being cocks.

        Regardless of what the courts say, considering that GB is trampling on the wishes of a dead musician who fought for a lot of causes I agree with, you can be sure that *I* won’t be supporting the company or their products in any way and will encourage others to do the same.

        That strikes me as a very sensible solution to this whole mess. Consumer boycotts are an effective weapon and one I’m generally in favour of. And it doesn’t run the risk of setting the kind of precedents I’m dubious about.

      • The Swiffer commercial was new lyrical content as well (when you have a dirty floor/ you must swiff it!). Which is part of my point. I could definitely make a case that the elevation of floor wipes via new lyrics to a song that originally satirizes American culture is parody. (Is there a legal precedent of “not parody”? I’d actually be interested to know.)

        Consumer boycotts seem like a very questionable solution. For one thing I don’t think most consumers give two poos about any of this. (Kim Dotcom wouldn’t have made $100 million if people cared about musicians rights.) Secondly your own objections seem dependent on the fact that the musician in questions is dead and that you liked his politics. But what if he was alive and a jerk? What If they had parodied “Wang Dang Sweet Poontang” instead?

      • ADT wrote:
        “Consumer boycotts seem like a very questionable solution. For one thing I don’t think most consumers give two poos about any of this. (Kim Dotcom wouldn’t have made $100 million if people cared about musicians rights.)”

        Well, I don’t know that I would go so far to call for a consumer boycott, just that I personally won’t support the company. However, I wouldn’t begrudge anyone who doesn’t care about the issue and simply wants some non-traditional toys for their daughter; I wouldn’t expect them to lose much sleep over the appropriation of a song that was kind of a joke in the first place.

        I’m the same way about music piracy in general. I don’t do it, but I don’t preach to my friends who do. It’s a battle I can’t win and don’t have time to fight on that level. I do try to invite as many people as I can convince to go out crate digging with me, though. Or to local shows with no-name bands. Exposure to the culture of supporting music is really the best way to make the point, I find.

        ADT wrote:
        “Secondly your own objections seem dependent on the fact that the musician in questions is dead and that you liked his politics. But what if he was alive and a jerk? What If they had parodied “Wang Dang Sweet Poontang” instead?”

        Well, I agree with the causes regardless of who champions them, but it does so happen that I really do like the Beastie Boys and Adam Yauch, as well. But, yeah, my opinion of GoldieBlox is definitely informed by my appreciation of the Beasties. That’s nothing more than my opinion, though. I’m not arguing policy, just pointing out that some companies behave like jerks and I don’t have to patronize them. Everyone is free to make that decision themselves.

        Why is it that although I’m unfamiliar with the song off the top of my head, that I knew “Wang Dang Sweet Poontang” was going to be a Ted Nugent song? Ha. Honestly, I’m not sure how I would feel. I probably wouldn’t give the situation much thought at all, unless someone patently violated Nugent’s rights with possible repercussions for other artists. Regardless, I wouldn’t argue that my feeling towards the situation should be law. That’s what the courts are for, and why we don’t pass laws/legislate through opinion polls.

        To be clear, I’m not arguing that what GB has done should be outlawed. I really don’t know enough about fair use to make that call. Personally, as a musician who makes a lot of sample-based music, I’m split on whether or not the US needs broader fair use exceptions. From a business perspective I’d like them to be very broad so I could take part in legit services like iTunes and the various streaming options, rather than slugging it out beneath the radar underground in music forums and on Bandcamp/Soundcloud (or ideally, I’d like the funding to clear the samples). However, artistically I do like to think that I respect the wishes of other artists as much as can afford to, and I also know that chilling the impetus to write new music will ultimately end up hurting me because the well of music to be sampled will eventually dry up (or we’ll all just keep sampling more and more obscure R&B/soul/funk records from the ’70s, which is kind of where that scene has been stuck for the past decade, already!)

        P.S. Ah! I’ve never really thought about the meaning of the lyrics in “Whip It” even though I used to sing the lead in an old band that covered it. I thought it was a silly bunch of nonsense. You make an interesting point about determining “not parody.” Why for instance, couldn’t any infringement be passed off as parody in some sense? I’m not a lawyer, though, so I can’t answer.

  • Ritual disclaimer: I’m not a lawyer ….but the EFF’s legal analysis is incomplete. They focus on the four ‘factors’ that must be considered in a fair use case, but a work may satisfy all four tests and still not be exempt. Note the opening part of the relevant legal provision:

    “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— [the four factors]”

    To be exempt a work must not only be a ‘fair use’, taking account of the four factors, but it must also be a use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. While this is not an exhaustive list of appropriate purposes, it indicates a broad area of legitimacy which pretty clearly does not include commercial self-interest. To bring the Goldieblox advert within this area of legitimacy it would be necessary to show that the ‘parody’ was for such purposes as criticism or comment, etc. That seems at best debatable. What is it criticising or commenting on? Sexism in general? The Beastie Boys’ song in particular? I don’t doubt that a clever lawyer could make out a case, but a good judge should know a fig leaf when he or she sees one.

    • I wonder if the more serious attorneys at the EFF even think this one passes the smell test. If the infringement was a calculated PR move on the part of GoldieBlox and SV firms who want to undermine copyright, it seems to have failed in the court of public opinion.

      • The fact that this has failed so miserably as a PR move, shouldn’t come as a surprise to anyone who actually took time to think this through and I’m guessing that GB backpedaling on this one as hard as they can is the result of someone finally finding their clever head and putting it on.

        I intend to actually go into the nitty-gritty over at TCM, but I would just quickly point out that “any publicity is good publicity” works only in a small number of cases – and most definitely does not for a toy company.

        A riddle: given everything that they’ve done, what message is GB (the company) sending out to girls? Clue: it’s an “empowering” one, certainly, but not in the way most parents (=potential customers) will appreciate.

      • Thanks. I was just browsing through the SCOTUS judgement in Campbell v. Acuff-Rose, which I suppose is still the leading precedent on the ‘parody’ defence. I can’t claim to have taken it all in, but I was struck by one remark that ‘a work with slight parodic element’ was less likely to satisfy the criteria for ‘fair use’.

      • I was having this discussion with a friend, but the producing entity and intent matter, not merely the stylistic elements of the work itself. For instance, every pharmaceutical ad could be conveniently described as “educational.” Should this mean that Pfizer can use any song to promote any drug without permission or compensation? Let’s hope not. Thanks for commenting.

  • The company does seem to have missed an important point when it comes to public opinion. Advertising execs have to be up there with lawyers and estate agents when it comes to careers that the general public don’t trust.

  • I had a further read of the SCOTUS judgement on Campbell v. Acuff-Rose, and noticed a few relevant points.

    One is that in deciding whether a parodic song is a fair use, it is necessary to consider the music as well as the words. The Court expressed no opinion on whether 2 Live Crew’s copying of the music of ‘Pretty Woman’ was excessive, and remanded this issue to the lower court to consider (page 589). The Court evidently thought that *some* amount of copying would be ‘excessive’, and remarked ‘this is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free’.

    The Court also expressly considered the possible use of a parody for advertising purposes, and remarked that such use ‘will be entitled to less indulgence under the first factor of a fair use enquiry than the sale of a parody for its own sake’ (p585).

    Finally, Justice Kennedy concurred in the Court’s judgement, but added some ‘observations’ which put some stress on the need to keep the definition of ‘parody’ ‘within proper limits. More than an arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defence, so doubts about whether a use is fair should not be resolved in favor of the self-proclaimed parodist ‘ (p599).

    Overall, the judgement, and especially Justice Kennedy’s remarks, are not as friendly to parody as often supposed. As Justice Kennedy put it, ‘if we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And underprotection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create’.

  • It has been mentioned somewhere that an earlier video/ad by Goldieblox used the words and music of Queen’s ‘We Are The Champions’, allegedly without permission, and I thought I would check that one out. But the only link I could find to the video on YouTube said ‘sorry, this video is private’. So it looks as if Goldieblox are in CYA mode. As I haven’t seen the video, I don’t know how extensively it uses the Queen song, but I haven’t seen any suggestion that it is ‘parodic’ of that song. Just using the same words and music does not a parody make!

    So far as the ‘Girls’ video is concerned, although Goldieblox have removed their own upload, with a bit of searching it is still possible to find it on YouTube (no surprise there). In my opinion the ‘parodic’ element is marginal at best. There is nothing parodic about the music, which is a straight copy of the catchy tune, and apart from the repeated use of the word ‘girls’ there is not much to connect the lyrics of the two versions. Is there sufficient to constitute ‘comment or criticism’? I don’t know, but I note Justice Kennedy’s comment that ‘as future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody’.

    • With all due respect to everyone’s desire to parse the fair use question here, it’s relatively clear that this entire thing is a calculated ploy known as PR by Lawsuit. Everything about it smells — the choice of the Beastie Boys, the rapid filing of the request for declaratory judgement by a very large law firm, the pulling down of the video and smarmy, public apology from GoldieBlox — all in a very short time just ahead of Black Friday? This has been a cheap media blitz, not unlike Chiat/Day’s jumping on the Pirate Square opportunity to promote its own brand, and GoldieBlox deserves to have it blow up in their faces, particularly as they presume to trade on the message of empowering girls. As the father of a girl, I find the whole thing offensive.

  • David,
    I’m afraid you’ve misread the statutory language. The key words are “including” and “such as.” News reporting, criticism, etc. may be fair uses — although I can think of cases where they were not, e.g. Harper & Row v. Nation Enterprises — but they’re merely illustrative examples. Even the four factor test is intended as a means of analyzing a work to see if it is fair or not, and may be subject to modification if the situation warrants. The reality is that any use may be a fair use, under the right circumstances, though not every use will be. However much you’d like there to be, there are no bright lines.

    For example, the Supreme Court felt that time shifting may at times be a fair use, and it’s not on that list. And the SDNY and 2d Circuit found that Paramount’s parody of an Annie Leibovitz photo for use in an advertisement for a movie was fair use, and that’s damned similar to the case at hand.

    • The Paramount image referenced the Leibovitz photo by substituting the head of Leslie Nielsen onto that of a model for Demi Moore. Essentially they copied the uncopyrightable idea of the photograph. The images, in addition to parody, served different purposes

      In this case what we have is a minor change in lyrics in order to sell crap.

      • John,
        So what you’re saying is that restaging the scene for a new, virtually identical photograph was just reusing the same uncopyrightable idea? Even though they not only had a copy of the original, but carefully modeled the new version after it in every possible detail, even making sure that the new model wore a matching ring to Demi Moore’s?

        Well, wouldn’t you be the most lenient judge ever! The creative part of a photograph has to do with choice of subject, pose, lighting, etc. The idea of a photo of a nude pregnant woman can be implemented in countless different ways; but substantial similarity and access in the absence of a good excuse is pretty clear infringement.

        And the trial court in Liebowitz found that not only was there infringement but that it was “that rare case where there is direct evidence — in fact, a frank admission by the defendant — that the allegedly infringing work is modelled on the copyrighted work. In the absence of a fair use defense, therefore, the defendant would be liable for infringement.”

        Uncopyrightable idea, my ass.

        If that were the case, a new recording of Girls with one small change would be the same uncopyrightable idea. It’s obviously not, in either case. Go read Nichols v. Universal.

        Besides, fair use is only available to prima facie infringing works. If the photo for the Naked Gun movie had been similar for innocent reasons, fair use would not have come up. The lawyers for Paramount could argue it both ways, but you can’t.

        It was a minor change in the photo (restaging it was pointless from a copyright perspective) in order to sell crap, in this case, tickets to a crappy movie.

        Section 107 and all the applicable caselaw permit fair uses that are totally commercial in nature. It may make things more difficult for the defendant, but no one’s ever said it is outright impossible. Goldieblox has at least a colorable argument and some precedent.

    • Anon – Thanks for the comment. You’re not wrong that this case (assuming it remains a case) is intriguingly similar to Leibovitz v Paramount. And although I consistently say that I try to avoid playing armchair IP attorney, my instincts about that judgment are echoed in Paramount’s own defense under the First Factor, which is that the print ad featuring Leslie Neilsen mocking the Demi Moore pose can arguably be seen as an extension of the film itself, which is nothing but parody, often taking aim at cultural icons. This appears to have been a significant factor tipping the decision toward fair use despite the advertising purpose of the print ad itself. Still, advertising use is a factor that will weaken a fair use claimant’s position, as I think it should in the GoldiBlox case.

      In contrast to Paramount’s print campaign, the purpose of the GoldieBlox video is to sell its brand as toy-maker/distributor. The video is not made for the purpose of parody for parody’s sake. Granted, the company wants to make “girl power” (I’m using shorthand here) part of its brand identity, and it is certainly reasonable for them to transform misogynistic or chauvinistic icons through parody in their marketing, if that is their strategic decision. That said, just because GoldieBlox is a “company with a message,” as it has tried to argue, it does not seem reasonable to grant them or any other advertiser greater leeway in a fair use judgment solely on that basis. Almost any advertiser can at least claim to “have a message,” so it doesn’t seem to me that this alone should be given much weight.

      I would also add that if any judgment were to be rendered in this case, that the Beastie Boys can and should argue that the original “Girls” is satirical itself, parodying misogyny, which raises the question as to the GoldieBlox parody meeting the standards of parody under the First Factor. In fact, my creative criticism — that a relatively small number of people will know the original music well enough to recognize that aspect of the attempted parody — also seems relevant in considering the First Factor under fair use. Can a parody of a satire mocking the same social stigma in which the original source material used may not be effectively parodic still be considered fair use?

      In the case of Paramount, the image of the pregnant Leslie Neisen (which is arguably funny without knowing the reference) was timely and predicated on a much-talked-about image that was in the public consciousness at the time. An advertiser hoping to sell to 15-24 year-olds today would be unwise to bank on a cultural reference that is unlikely in their consciousness, which is what GoldieBlox is sort of trying to do claiming use of music released in 1987. Fair use, of course, does not account for ineffective marketing decisions, but First Factor does take into account the premise that a work has to be in the social consciousness in order to make a case for parody.

      • David,
        Thanks for the reply.

        I wouldn’t say that Goldieblox is entitled to greater leeway in a fair use case, but I do think that they deserve a fair shot at making their argument. As I said, any use might be a fair use, though not every use will be. While I wouldn’t presume to know what a court would decide if it went to trial, it’s silly and wrong to say that there is absolutely no fair use here merely because they’re using the song in the context of a toy commercial.

        As for the satirical value of the original song, I don’t think it should weigh against Goldieblox if they took it literally and rewrote the lyrics without recognizing that it was satirical, if in fact that is the case.

        Going further, I’d actually say that even if they were aware of it, the parodic value is not diminished just because the original song is satirical. To do otherwise would be to create an exception to parody fair uses. For example, if it were copyrighted, why wouldn’t it be a fair use to parody A Modest Proposal by taking it even more over the top, with the character of Swift not only proposing baby-eating, but a whole host of even more horrible things. (I imagine the people who do South Park could do a good job of it)

        With regard to cultural awareness, again, I think you’re trying to add a restriction on fair use which is not in the law. Hopping over to another Zucker and Abrahams project, Airplane! was not only a parody of the 70s disaster films, especially the Airport series, but was also quite closely based on Zero Hour, which was not a particularly well known film at the time AFAIK. They avoided legal problems because their studio owned Zero Hour as well, but they still ridicule the basic plot of the relationship between the hero and heroine, and the plane with no pilots. (It’s not an uncopyrightable idea thing either, they really do recycle the plot and the make it funny, e.g. Peter Graves’ symptoms showing up like clockwork.) I don’t think there’s a credible argument that it wasn’t a parody because of the obscurity of the work it was based on. Nor do I see that there must be a large audience that gets it, or even a small one. Otherwise you’re saying that parodists are only protected by the law if their humor is widely accessible and everyone gets the joke. I don’t think we should chill parody by restricting it to the current top 40.

        And what would that do to old parodies, by the way? There are all manner of references in old comedies that go over the heads of audiences today, because they don’t know the popular songs, movies, books, commercials, etc. of that era. If you were to remake one exactly, would it no longer be parody? I just can’t see that.

      • Actually, Anon, I mostly add the cultural awareness aspect as layman’s food for thought seeing as I am in no position to argue for greater restrictions on fair use. I only point out that language I have read from legal scholars and court decisions does include the concept of cultural awareness when assessing fair use as parody. If I boosted a song from an as-yet unknown singer/songwriter, rewrote the lyrics to mock the original, and published it calling it parody, the songwriter would have a much better case for infringement against me because her song is not in the public consciousness. From what I have read, including analysis of Liebovitz v Paramount, this would be considered with regard to the First Factor in defining parody.

        As for Airplane!, do you actually know of any potential legal entanglements there? Because I can’t see any with regard to infringement. Anyone is free to parody a whole genre at any time, and there is nothing protectable about a story structure or, frankly, much of anything in a screenplay. More to the point, we’re defining what is and is not parody in an absolute or creative sense, but only as pertains to the question of fair use. Experientially, it is true that my kids will not find Airplane! as funny as we did because they didn’t grow up with 70s airport disaster movies, but it’s still parody, just of something this generation won’t really get without the reference.

        Parody in this conversation is one form of communication that may or may not grant the communicator fair use of copyrighted works, and generally only if the work in question is the target of the parody. Thus, even if the GoldieBlox were not a commercial, it seems that as producers, they would still need to show that the original “Girls” is the work being parodied. And again, from my reading of decisions, judges may well take into account the probability that the prospective audience will even recognize who or what is being lampooned.

        As for the old comedies question, again, it seems as though you’re sliding into cultural reference within comedic works, but unless there is an actual use of a copyrighted work and claim of fair use, we’re off topic. If I take your question literally, you seem to be asking if one were to remake in 2014 a parodic work from 1957 that includes a fairly used work from 1947, would it still be parody if nobody gets the joke, and would that 1947 work (if it were still protected) still be fairly used for the purpose of parody? If this is a correct understanding of your question, my answer is I have no idea. It’s an unlikely hypothetical, one I’m sure a copyright lawyer could answer more definitively.

        On a side note, while I understand your desire to remain anonymous, your ever-changing email means that I have to approve every one of your comments. As such, I’m sorry if they appear later than you might wish.

  • To be clear, as I think Anon replied to one of my earlier comments, I am not David Newhoff!

    I am aware that the ‘preambular’ examples are not exhaustive, but under the usual maxims of interpretation they would be taken as indicating a broad area of relevance. I know that in the Betamax case the Supreme Court accepted ‘timeshifting’, which has no connection with the preambular examples, as an appropriate ‘purpose’, but that was a dubious decision: see Justice Blackmun’s strong dissenting opinion.

    Incidentally, although Goldieblox appear to be still blocking access on YouTube to their other advert using the Queen song, the have not (yet) managed to block copies uploaded by other people, and there is one here:

    http://www.youtube.com/watch?v=b4xdnr-WMPE

    Presumably no-one would argue that the use of ‘We Are The Champions’ is in any way parodic, and if Goldieblox did not have clearance from the copyright holders they would not have a leg to stand on.

  • David,
    Blackmun could say what he liked, but Sony triumphed 5-4 and the concept of timeshifting has even been adopted by the plaintiff in that case (Universal Studios, now owned by Comcast, which is more than happy to provide DVR equipment to its customers to use). It’s also been the basis for the space shifting form of fair use in RIAA v. Diamond, which turned out to be fundamentally important for the later-developed iPod. Both are good, solid, sensible types of fair use, widely enjoyed by many.

    As for the use of the Queen song, no, I don’t see an argument for fair use there, but then again I didn’t initially see one for the Beastie Boys song, yet wound up convinced that they have a credible argument. I think they should fire their ad agency though; they keep causing trouble.

  • Anon, you keep mentioning “copyrightable idea” as if that is an actual thing.
    FYI, an “IDEA” is one thing you can’t copyright… only a specific expression of said.

    • James_J,
      No, a previous commenter, John Warr, said that in the Liebowitz case, Paramount had copied the uncopyrightable idea. I replied that I didn’t think so, and that it was prima facie infringement. In fact, I searched the page for the term ‘copyrightable idea’ and your post seemed to be the only one that had it. Well, and this one now, since I’m replying to you. There is the possibility of autocorrect messing up what I’m trying to say, but rest assured, I know that ideas are not copyrightable, as are any number of other things. Thanks, though.

      • Well, in your first post here: “Uncopyrightable idea, my ass.

        If that were the case, a new recording of Girls with one small change would be the same uncopyrightable idea.”

        And you then went on to describe ‘Airplane!’ the movie as having “ideas” from other movies. etc.

        just trying to right the ship here, no offense intended.
        Anyone can make a movie about a mystical land with wizards and dwarves and elves, you just can’t call yours ‘Middle Earth’…

  • James_J,
    I think I see the problem. I wasn’t saying that it’s ridiculous to have ideas be uncopyrightable. I was saying that it was ridiculous to claim that Paramount’s parody version of the Leibovitz photo was merely an example of a new expression of the uncopyrightable ideas underlying the original photo, when it is so obviously rather pedestrian copying.

    No offense taken.

    (Also, as names and short phrases are also not copyrightable, I wonder if a movie about a mystical land with wizards and dwarfs and elves which was called Middle Earth, but which otherwise bore no resemblance to anything by Tolkien, would be copyright infringement.)

  • David Newhoff,
    “As for Airplane!, do you actually know of any potential legal entanglements there? Because I can’t see any with regard to infringement. Anyone is free to parody a whole genre at any time, and there is nothing protectable about a story structure or, frankly, much of anything in a screenplay.”

    No, I’m not aware of any. But it was the first thing that came to mind for a parody that is well known, unarguably a parody, but where the subject matter is fairly obscure. If you can think of another example, I’m happy to refer to that. Anyway, take a look at Zero Hour; if not the actual film, a summary of it. Enough of it is taken, I think, that if Airplane! were not a parody (and if it hadn’t had permission, being a product of the same studio that owned Zero Hour in the first place), there would have been legal trouble.

    “Parody in this conversation is one form of communication that may or may not grant the communicator fair use of copyrighted works, and generally only if the work in question is the target of the parody.”

    I can’t help but think of the parody/satire distinction in fair use law, but I’ve never found it convincing. While I recognize the need to avoid having infringers slap a parody label on a work in an attempt to get away with it, there are a lot of parodies which are not intended as thinly disguised infringements that nevertheless would get swept up. I think that it’s better to concentrate on the fourth factor: proper parodies are not substitutes for the underlying works and don’t harm the market for the underlying work. To introduce a rule that parodies absolutely must in some way comment on the underlying work to qualify for fair use seems like too much of a bright line rule, which is what fair use isn’t supposed to have.

    As an example: When Weird Al did a parody version of Smells Like Teen Spirit, it was about how incomprehensible Nirvana’s lyrics and Cobain’s singing were. That’s a parody that comments on the original. At about the same time, Al had been working on a parody of Michael Jackson’s Black or White, which was predictably about food. Jackson didn’t give Al permission to parody that song. But while Al never recorded it for an album, he has performed it in concert. There’s no sort of comment on the underlying song, it just reuses the music and the lyrical meter. Setting aside pedestrian matters like the statute of limitations, is Al in trouble? You can find more information about it here: http://weirdal.wikia.com/wiki/Snack_All_Night

    “If I take your question literally, you seem to be asking if one were to remake in 2014 a parodic work from 1957 that includes a fairly used work from 1947, would it still be parody if nobody gets the joke, and would that 1947 work (if it were still protected) still be fairly used for the purpose of parody? If this is a correct understanding of your question, my answer is I have no idea. It’s an unlikely hypothetical, one I’m sure a copyright lawyer could answer more definitively.”

    Yes, that’s my question. It’s related to a larger question I have about fair use: what timeframe should be considered in a fair use analysis? For example, if I record a TV show on my Betamax for the purpose of time shifting, and never erase or destroy the tape, do I infringe if, years later, I sell the tape at a garage sale? If the fair use only matters at the time the show was recorded, then the copy is lawfully made, and first sale applies. If the fair use has to be fair throughout the lifetime of the use, then I’m selling a homemade copy of a work as a substitute for an authorized copy, and it is quite likely not a fair use, even though at the time I made the copy, I had no idea that I’d sell it.

    And while I’m sure that _a_ copyright lawyer could answer these questions more definitively, _I’m_ a copyright lawyer, and I have no idea how a court would rule if this came up in a case. They’re very interesting problems though, and I’ll admit to being disappointed that Goldieblox dropped its suit simply because I was interested in how it would’ve turned out. At least Aereo is diligently trying to sate my curiosity.

    “On a side note, while I understand your desire to remain anonymous, your ever-changing email means that I have to approve every one of your comments. As such, I’m sorry if they appear later than you might wish.”

    No worries; I’m not in any kind of rush, and I hope they continue to meet with your approval.

    • With respect to your credentials — like I say, I don’t like pretending I’m an attorney — my understanding is that motion pictures are generally only copyrightable in their entirety as finished films. You certainly can’t copyright a premise, a story structure, lines of dialogue, or even (I believe) a screenplay, which are typically registered with the WGA and never, to my knowledge, with the copyright office. Neither I nor any writer I know has ever done anything with a script other than register with the WGA, subscribing to a form of self-governance within the industry. Movies are after all extraordinarily derivative, but it is also both difficult and never desirable to literally make the same film twice. In fact, without getting to quantum physicsy about it, I’d argue that it is literally impossible to make the same film twice, if we look holistically at all of the variables that result in the final product. It doesn’t matter how closely Airplane! resembles Zero Hour for the same reason the fundamental premise of Die Hard (i.e. expert crime fighter accidentally in the right place at the right time) can and has been remade over an over without dispute. If these fundamentals were copyrightable, Mel Gibson would have one movie to his directorial credit, since he has made exactly the same story — man with deadly skills gets pushed too far until he goes berserk and kills everyone — in Braveheart, The Patriot, Apocalypto, and so on…

      As for Weird Al, I’d love something more definitive than that link, which doesn’t offer much by way of credentials. To my knowledge, Al’s work, which includes many parodies that date back to before MTV (ah how I miss them), is totally in the clear. I’m surprised to read anything about Al asking permission unless he did so voluntarily. His spoofs are straight up, self-contained parodies of songs and offered as entertainment. When the GoldieBlox story broke, I asked one of my IP attorney friends about Weird Al, and she pretty much confirmed that he probably had free reign.

      As for your hypothetical with the Betamax, it’s interesting but sounds arcane enough not to be broadly relevant to copyright, much as it is unlikely anyone will produce a remake of some work that has lost most of its cultural context and cannot be sold to a contemporary audience. I also don’t think the two examples are analogous. Selling your old tape at a garage sale may literally be a form of infringement, but would anyone care other than as a thought exercise? Producing a new remake of a parody that depends on a protected work and claims fair use is a different matter. If I were to remake Weird Al’s send up of Pat Benetar’s “I Love Rock-n-Roll,” other than the fact that I’d look ridiculous, would my use of that song still be judged fair if its owner brought a case against me? I think it probably would. But go the other direction — and I may have used this example elsewhere — what if I make a parody of a song by a new indie artist most people haven’t heard of yet? That would seem to fail both the First and Fourth factors in judging fair use. Hard to claim parody if nobody gets the joke, and my parody could be damaging the value of the original, harming it in its infancy as it were.

  • David Newhoff,
    “You certainly can’t copyright a premise, a story structure, lines of dialogue, or even (I believe) a screenplay”

    Well… perhaps things have changed (I’ve only ever had one client who had anything to do with movies), but there is a continuum from idea to expression, and somewhere along there, there is a point where infringement occurs. Nichols v. Universal Pictures has a good discussion of this:

    “It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case. When plays are concerned, the plagiarist may excise a separate scene; or he may appropriate part of the dialogue. Then the question is whether the part so taken is “substantial,” and therefore not a “fair use” of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can. In some cases the question has been treated as though it were analogous to lifting a portion out of the copyrighted work; but the analogy is not a good one, because, though the skeleton is a part of the body, it pervades and supports the whole. In such cases we are rather concerned with the line between expression and what is expressed. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.

    We did not in Dymow v. Bolton, hold that a plagiarist was never liable for stealing a plot; that would have been flatly against our rulings in Dam v. Kirk La Shelle Co., and Stodart v. Mutual Film Co.; neither of which we meant to overrule. We found the plot of the second play was too different to infringe, because the most detailed pattern, common to both, eliminated so much from each that its content went into the public domain; and for this reason we said, “this mere subsection of a plot was not susceptible of copyright.” But we do not doubt that two plays may correspond in plot closely enough for infringement. How far that correspondence must go is another matter. Nor need we hold that the same may not be true as to the characters, quite independently of the “plot” proper, though, as far as we know, such a case has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

    So while the premise of a high concept movie would certainly be too far on the idea side of the spectrum to be infringed upon if it were used (Die Hard on a merry-go-round), the closer and closer the resemblance, eventually it would be possible to infringe. I’m sure that had Gus Van Sant not obtained permission, his ill-conceived and nearly shot-for-shot remake of Psycho would have been infringing. And as the Nichols court says, copying needn’t be exact to infringe, it only needs to be too much. Of course you have to remove from consideration all the usual suspects: uncopyrightable facts (important in historical pictures), scenes a faire, etc.

    Re: Weird Al, how about a piece he wrote in Rolling Stone after Michael Jackson’s death in which he says that Jackson wasn’t comfortable with a parody of “Black or White” along with a video of him performing it anyway (or at least as much of it as he wrote) at a concert?

    http://www.rollingstone.com/music/news/michael-jackson-remembered-weird-al-yankovic-on-imitation-as-flattery-20090709

    http://www.youtube.com/watch?v=D5YpR1C2FXE&html5=1

    “Selling your old tape at a garage sale may literally be a form of infringement, but would anyone care other than as a thought exercise?”

    Well, there was a very subtle rewording of the AHRA bill before it was passed. According to Patry, who was involved in writing the thing, IIRC, originally the AHRA would have made certain home audio recordings non-infringing. Fairly late in the legislative process, the language was changed to make them non-actionable. That is, they’re still infringing, but they cannot be the subject of a lawsuit. (Which is dubious to me given due process, but the AHRA has been so unimportant to everyone that there’s never been a challenge) The reason is that if the copies were non-infringing, they could enter the market under first sale. So I don’t think it’s wholly angels dancing on pins.

    “my parody could be damaging the value of the original”

    There are limits to that. A bad review of a work, which includes quotes or clips to prove that the bad review is justified, can damage the value of the original, but it’s still fair use. Think back to Campbell v. Acuff-Rose: a fair use parody would have to not damage the value of the original as fodder for parodies. That is, the copyright holder would have to be engaged in the licensing of parodies, which typically doesn’t happen. This is why I felt that the Beastie Boys’ policy of never licensing songs for commercials actually harms them; it reduces any harm under the fourth factor.

    • Thanks for the reference to Nicholas, but to be clear, I wasn’t suggesting that infringement could never occur. I think it’s common sense that the closer a new work comes to resembling an existing one, there will be a greater likelihood for infringement. If it were a bright red line, I suppose we wouldn’t need courts. Attorneys and judges might use different language than I for describing the broadest elements in a film story, but my point is that what happens in reality and round-the-clock is hundreds of projects are being produced that share common themes, ideas, character types, etc.; and the wheels of that production are not frequently slowed by concerns over infringement. I may be generalizing in layman’s terms, but so does the entire film-making universe, which is why so much product is made without everyone being tied up in litigation.

      Regarding Weird Al, by coincidence, a colleague who has represented Al happened to mention recently that the parodist got permission and paid licenses for everything he did, which jibes with his respecting Jackson’s wishes (at least as a recording and video) for “Black/White.” I asked said colleague if Al did all this voluntarily, or if it was deemed to be necessary and have not received a response yet. Suffice to say, Weird Al respected and collaborated with the artists, paid for all necessary licenses, and built a whole career for himself while coming to be loved, or at least appreciated, by the creators he parodied.

      What’s interesting to me is that Al makes a good case for copyright NOT stifling innovation, but of course the digital age gurus want to say, “But the Internet means there can be a thousand Weird Als out there . . .” The problems here are 1) that this assertion effectively argues that the technology which places distribution in the hands of everyone fundamentally changes the rights of an author of a work; and 2) the promise made in statements like this is economically unsustainable. In other words why does the fact that YouTube exists mean the presumptive 999 Weird Als get a free ride on protected works? And even if they do get that free ride, it’s a safe bet that 997 of them are not going to build careers like Al because the market doesn’t want that many and because some of them won’t be good at it.

      As for my example of parodying a new work that is as yet unknown, I think it would be a precedent-setting case in itself and isn’t well informed by Campbell. This is, of course, because it is an unlikely hypothetical; it’s hard to imagine anyone choosing to parody a work that isn’t in the public consciousness. Still, I was using the hypothetical to illustrate that awareness of the original appears to be an important aspect of the First Factor in that the parodist cannot transform a work that does not have a first-context identity. This would seem to be as true for an older work that has slipped out of the public consciousness as it would be for a new work that has barely emerged. In the case of the new work, with regard to the Fourth Factor, I was imagining a scenario whereby I make a parody that in itself is funny and popular despite the fact that the public is unaware of the work it parodies, and then the artist tries to release her song in a market where it has been pre-mocked, if you will. This hypothetical may be such a strain on the bounds of reality that it isn’t worth considering at the moment, although what if it were a well-known artist with a new work, and I happened to get a preview and produce a lampoon that preempts or coincides with the release of the original? I would predict that the more well-known the artist is, the stronger case I would have for fair use as parody. Regardless, what you say about the Beasties weakening their Fourth Factor defense by never licensing is interesting, although is that really the only way in which economic harm might be done to the original work?

      Finally, to bring all this back to GoldieBlox, their case for fair use here looks extraordinarily weak, and was made weaker when they re-released the video without the “Girls” track. By no definition can the video be said to be a work of parody; it simply depicts little girls playing with machines and building a Rube Goldberg contraption to convey the message “girls can build and be engineers.” Separately, the song as a stand-alone product could be called parody, although only if it is understood by an audience to be a lampoon of the Beastie Boys’ “Girls,” which is likely a stretch because the song is nearly 30 years old (barely in the consciousness of Debbie Sterling, I’d say). The song as a stand-alone element serves no purpose for GoldieBlox, is not parody for it’s own sake, and just so happens to try to parody a song that in itself was a satire of chauvinism or misogyny. GoldieBlox produced the song as a component, although not an intrinsic component, of a video; but the song and video together do not add up to a parody of the original Beastie Boys’ work, or anything like it. At best, these combined elements add up to a satire of a social condition (and still only if the audience recognizes the musical source), and fair use is not granted to works as elements in a satire. In a nutshell, I think most people saw this video as a sweet, straightforward, “girl power” commercial with a cool design, and they were unaware of the Beasties’ role until the copyright side-show began.

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