Beastie Boys Sue GoldieBlox

December 12, 2013 David Newhoff Tags: Beastie Boys fair use GoldieBlox

I have to admit to feeling a measure of sympathy for Debbie Sterling, CEO of GoldieBlox, who now finds her company at the receiving end of a suit by The Beastie Boys for acting with “oppression, fraud, & malice” in the misuse of the band’s song “Girls.” Why the sympathy? Because I watched Sterling’s TED talk in which she relates the story of her pursuit of an engineering degree and the founding of the GoldieBlox brand, and I think two things: 1) the world needs entrepreneurs with her sensibilities; and 2) somebody has given her some really bad advice.

The probability that GoldieBlox actively endeavored to use legal controversy itself as a marketing tool is very high. After all, on the same day the Beastie Boys made inquiry into the use of their song, GoldieBlox filed for declaratory and injunctive relief predicated on a claim of fair use of “Girls” as a parody. It’s almost as though some lawyers had already prepared the filing in anticipation of a dispute. Ya think? Then, the EFF and Techdirt come out smug as ever, wagging fingers at The Beastie Boys and declaring the obviousness of fair use in this case despite the fact that there is rarely anything obvious about fair use, and particularly when a work is used in the form of advertising. Meanwhile, most professional editorials and general comments from the public tended to favor the Beastie Boys, demonstrating to GoldieBlox that there really is such a thing as bad publicity, and so the company re-released the same video sans “Girls” and also issued a rather cloying apology, saying effectively, “Gosh, we’re sorry, we’re just a fledgling company, please don’t hurt us. We love you!”

Despite what was looking like a PR fiasco, the suit now facing GoldieBlox is at least partly based on the premise that the company’s use of both the song “Girls” and the Beastie Boys name contributed to a significant increase in sales. After all, if drawing the foul was a tactical PR move, then that’s trading on the Beasties as a brand in addition to using their song without permission. It will be interesting to see where this leads, but I am sorry to see a business that appears to be founded on some good ideas make such a dumb mistake. I don’t think GoldieBlox has a leg to stand on with its fair use claim, and if they decide to fight that particular battle, I suspect Ms. Sterling is going to begin to wonder how she got quite so far away and so quickly from the business she meant to be running. After all, she isn’t in the parody business, which has a lot to do with why this approach is so likely to backfire.

ADDENDUM: WTF? I refer you to the Trichordist reporting that Goolge Books lawyer Daralyn Durie is representing GoldieBlox in this, which is some high-octane legal muscle for a tiny little startup. As indicated above, did Debbie Sterling really mean to get into the “copyfight” business? Because this is her life now. Ah well. I’m sure there’s another woman engineer out there interested in inspiring young girls to pursue math and science.

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Tags: Beastie Boys fair use GoldieBlox

David Newhoff

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David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

15 Comments

James_J says:

December 12, 2013 at 3:20 pm

As i see it, they left the Beasties with no choice but to sue.

Otherwise other companies will get a ‘bright idea’ and use the popularity of others hard earned recognition to give legitimacy to their own brands (without asking/paying for such)…
This whole thing smells like a contrived exercise farted out of a Google-Think-Tank to further weaken copyright and shit on yet another artist.

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Songwriting Business (@SongwritingMB) says:

December 12, 2013 at 6:08 pm

Insightful comments as usual, David. When you look at the principles at play, there’s no way fair use can be claimed. The whole name of the game is developing mutually beneficial, respectful relationships among music creators and folks who want to make money using our work. It’s simple… but as so often is the case, “simple is complex.”

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- David Newhoff says:
  
  December 12, 2013 at 8:28 pm
  
  Thank you, and thanks for commenting.
  
  Reply
Sam Flintlock says:

December 13, 2013 at 6:59 am

So this is going to be decided in court. (Assuming a settlement isn’t reached at a later date, which is always a possibility). That’s maybe a good thing; let’s see who’s got what.

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- David Newhoff says:
  
  December 13, 2013 at 7:27 am
  
  I’ve already had an extensive and interesting exchange on fair use in the comment thread below the first post on this story, but GoldieBlox hasn’t got a claim here by any standard that I can imagine. They can’t even reasonably argue that they’ve produced a parody at all, let alone a parody that would allow fair use of the Beasties’ song. Basics: the video isn’t a parody, which they only proved by re-releasing it without the “Girls” track. The song on its own is barely a parody if it can be reasonably assumed to be in the public consciousness, but we all know GB didn’t produce the song as a stand-alone piece. Taken together, the song plus video don’t add up to a parody of the original “Girls” video at all, and just barely might be understood as satire of a social condition, which is not grounds for fair use.
  
  As I keep implying, the fact that Sterling would even allow this to go to court is suspicious in itself because there is nothing in this fight that is integral to the business she’s supposed to be building. This suit could easily end her company, and if she chooses to pursue it, she deserves that outcome; but that seems like a psychotic risk to take over the wrong issue. This suggests to me some Silicon Valley wonks have their hooks into her. Who the hell is paying for what may be $3k/hr legal representation to defend a commercial? That’s unheard of. It would be like Budweiser suddenly deciding it’s more important to not pay a piddling licensing fee for a song than to sell a billion dollars worth of beer.
  
  Reply
  - Sam Flintlock says:
    
    December 13, 2013 at 8:18 am
    
    I think it is unlikely that Goldieblox will win this one. But the courts are too unpredictable to know that for sure.
    
    And yes, it would be interesting to know who’s funding this. There’s no way that they’re working to a small startup budget.
  - M says:
    
    December 14, 2013 at 12:27 pm
    
    I feel like the song GoldieBlox made is a clear lampooning of the message in the original Beastie Boys song. Although using it in a commercial might might negate fair use protections, but I think court will have to decide this one.
  - David Newhoff says:
    
    December 14, 2013 at 12:32 pm
    
    Even what you just said doesn’t pass the test. Lampooning a message is fundamentally satire. You have to parody a specific work, and it has to be recognized as a comment on that work. And while the song kinda sorta meets that standard, the video isn’t a parody of anything.
  - M says:
    
    December 14, 2013 at 12:45 pm
    
    If the original song message is to objectify women, and someone goes and changes the lyrics to empowerment of women. I think you have some strong fair use going on.
    
    But there are many questions. Is the song itself a complete work where the author (GoldieBlox) has full rights over, or are they substantially limited in the way they can use the song? Is the commercial itself a commentary on the objectification of women, which the song apparently promotes, and thus part of the fair use argument? Does a commentary must have a non-commercial agenda or not? Is the original BB song itself a parody of other songs that objectify women (parody within parody)? There is a lot of questions I think that could be asked. It’s an interesting case and I’m going try to predict who will win.
  - David Newhoff says:
    
    December 14, 2013 at 12:50 pm
    
    That’s simply too broad. To be a parody, one must have a reasonable expectation that an intended audience will know consciously what work is being parodied. In this particular case, GB’s position is even weaker given the fact that the original itself satirizes the objectification of women. In order to be a parody, a work has to be transformative in its mockery of the original. I predict that GoldieBlox will lose huge (and deservedly so), and that Sterling will wonder why she tanked her toy company over this.
  - M says:
    
    December 14, 2013 at 12:46 pm
    
    try to predict = not going to try to predict 🙂
  - M says:
    
    December 14, 2013 at 1:07 pm
    
    Also we must remember that fair use covers many different uses of copyright works, not just parody, but many uses can be considered fair use if the circumstances allow it. In fact, fair use is extremely broad and it’s scope has only increased in court cases within the last decade. This is helped by the fact, that fair use is strongly opinionated, and as society’s opinions change, so does the protections fair use entails.
    
    All I say about the idea of fair use being narrow is that Google made a successful fair use argument on the situation of copying the entire collection of published written works (ie. hundreds of millions of books) and putting substational portions of these works online.
    
    Comparatively GoldeBlox on the other hand, used a substantially modified version of one of the more obscure BB songs (ie, pretty much all the lyrics are different, and have a completely different message, and yes, are highly transformative). All these things: the fact that use is transformative and non-competitive (ie. there aren’t competing in BB’s market), the fact that the song wasn’t one of BB’s more popular songs, the fact that the use is not substational [ie. in a single commerical], can all be factors in a fair use argument WITHOUT even considering parody yet. And there is still the parody argument.
    
    Ironically, also the fact that BB doesn’t want to license their music for commercials also works as a fair use argument too! (one of the reasons fair use exists is to allow for uses of a work that are NOT in the interests of the original author, and that he/she would be unlikely to license for). The more an author limits the use of their work, the more fair use applies.
    
    But you know, there are some pretty big legal muscle on both sides of this court case, so we’ll see.
  - James_J says:
    
    December 14, 2013 at 2:23 pm
    
    @ M,
    i think you are very confused on what Fair Use entails. Yes there is leeway written into the law, but DO read the four point smell test written into section 107 of the Copyright law:
    
    1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
    2.The nature of the copyrighted work.
    3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
    4.The effect of the use upon the potential market for, or value of, the copyrighted work
    
    specifically 1,2,&3…
  - Faza (TCM) says:
    
    December 15, 2013 at 12:18 pm
    
    Don’t forget about no. 4, which is perhaps the most relevant here: if a company is able to weasel its way out of securing a proper license (meaning: paying for it) by claiming fair use, the established principle that works have a market value in advertising is destroyed. The impact on that potential market value is devastating.
    
    In this particular case, you could argue that the Beasties don’t want to explore that particular market, but you could also argue that they’re free to change their minds about that at any time. Moreover, there’s a potential of setting a precedent and the general principle at stake as well.
    
    Since this particular use is quite clearly an attempt to circumvent normal market mechanisms, it fails miserably as a fair use.
James_J says:

December 15, 2013 at 11:51 pm

Absolutely.
though-
One wouldn’t even need get to number 4 as they don’t even get past number one.

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