Category: Intellectual Property

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.

Terry Hart Rebuts Rebuttal of IIPA Report on Copyright

As usual, Terry Hart at Copyhype comes bearing wisdom and footnotes in his follow-up post on the IIPA Report indicating that copyright industries contribute substantially to GDP.  From his post:

The reaction from copyright skeptics about the report’s conclusions that copyright contributes significantly to the US economy was, essentially: “Does not.”

The spin seems to be that, yes, industries that create and disseminate copyrighted works may make substantial contributions to the US economy, but that does not necessarily mean that the success is a result of copyright itself. Jonathan Band, writing at the CCIA’s Project DisCo, says, “The report itself does not in any way attribute the success of these industries to copyright protection.”

Hart calls this argument “odd” because it is.  To me, Band’s criticism is like saying the right of free speech has nothing to do with the profusion of citizen journalism, satire, or political debate in America, but what do I know?  Read Terry’s blog, and read it often.  When it comes to the real nuts and bolts of copyright, Terry is a wise, sober voice — with footnotes!  I’m just a curmudgeon with a well-worn thesaurus.

Read Terry’s post at Copyhype here.

Spin This: Copyright Industries Grow at Twice the Rate of US Economy

A new report released today by the International Intellectual Property Alliance (IIPA) offers the following big headlines for FY2012:  the copyright industries, for the first time, contributed over $1 trillion to the U.S. economy, accounting for nearly 6.5% of GDP; these industries represent nearly 5% of all private-sector jobs (5.4 million) in the U.S.; these industries grew at an aggregate annual rate of 4.73%, which is more than twice the rate of the U.S. economy (2.1%) overall.

So, what are we to make of these numbers?  Or just as importantly, how will copyright’s antagonists spin this report?  They could try to punch holes in the findings themselves, but that seems unfruitful; numbers this big would have to be grossly inaccurate to suggest that copyright industries aren’t a critically important segment of GDP, as has been attempted in the past.  On the other hand, copyright’s foes could spin this report as “See, we told you internet phenomena like piracy aren’t hurting anyone. Look how good things are, you whiners.” But here’s the bottom line I think we should take away from this report and any pollyanna attempts to rebut or redirect its relevance:  copyright works, don’t break it.

Seriously, the only reason I write about this stuff is that a massively powerful — although not so economically valuable — minority of companies  spend a lot of time, energy, and money trying to reverse, weaken, or obliterate IP laws on a global scale; and if nothing else, I happen to think squandering the economic engine fueled by copyright is a really bad idea unless someone can demonstrate precisely why we should monkey with a trillion-dollars worth of GDP.  So far, for all the academic theorizing and economic divination that claims without any evidence that “copyright stifles innovation,” the record is clear that investment in these industries supports economic health, and that should matter to anyone with a job in any sector.  To put that in perspective, if you’re a truck driver, you are at least 5,000 times more likely to be delivering goods to someone who works in a copyright-supported industry than to someone who works for a company pushing to weaken this legal framework.  It should be understood that the antagonists to which I refer are not all technology companies by any means.  To the contrary, this report includes software and other technologies that rely substantially on copyrights.

This afternoon, the House Judiciary Committee resumes deliberations on an ongoing review of copyright; and while there are reasonable grounds for revising this body of law, the process should, in my opinion, be viewed as requiring surgical revisions with particular attention to more robustly protecting the independent entrepreneur in the digital market.  Beyond that, it is hard to fathom why any American would want to needlessly and recklessly tamper with a system that promotes this kind of economic prosperity.  We have enough real problems.  Copyright isn’t one of them.