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.