GoldieBlox – Money for Nothin’ & Clicks for Free

February 1, 2014 David Newhoff Tags: Chez Paznienza GoldieBlox Intuit Super Bowl

According to this analysis by Chez Paznienza on The Daily Banter, toymaker GoldieBlox not only used copyright infringement as a marketing tool leading up to the 2013 holidays, but that same YouTube spot illegally using a song by The Beastie Boys was instrumental in their winning a $4 million dollar TV spot placement during tomorrow’s Super Bowl. As Paznienza writes, “The Beastie Boys found out their music was being used against their wishes by GoldieBlox when the company initially submitted the ad to Intuit, which was running a contest to place the ad of a small business into 2014′s Super Bowl coverage. Let me say that again: Even though a new commercial would likely be shot, GoldieBlox submitted an ad made up entirely of ripped-off material that would potentially go out to 100-million people. Even Shia LaBeouf would think that was fucking insane. But even after GoldieBlox pulled the commercial and scrubbed it from YouTube, they remained in the contest; that never went away.” Paznienza is wrong that the YouTube spot was made “entirely” of ripped-off material, but he’s right that the controversy over the ripping off generated buzz around GoldieBlox, which helped them win public votes in this contest for the Super Bowl ad. Maybe if contest finalist Locally Laid had ripped off Prince’s “Darling Nikki” or something . . . but I’ll let that train of thought run down the tracks before I get in trouble.

In Episode Four of our new podcast “some tech thing” we talk a bit about this story, but not enough. Given the amount of screaming people do on the subject of copyright trolls and so-called abusive takedowns (neither of which is either chronic or without remedy), not nearly enough screaming happens when people or companies purposely orchestrate a copyright controversy and leverage some artists’ brand as a springboard for a massive marketing blitz. Not only should the Beastie Boys pursue their case vigorously against GoldieBlox, but the taxpayer should probably be reimbursed for wasting court time on this one.

I don’t know about you, but I’ve had it with bogus claims of “disruption.” It’s the meaningless buzzword of our times. And while I’d like to applaud GoldieBlox’s founder Debbie Sterling’s goal to “disrupt the pink aisle” and get girls into science and engineering, I can’t possibly endorse her “disrupting” the rights of other entrepreneurs in order to gain market-share, all the while posing as the innocent little startup that could. So, in response to GoldieBlox earning itself a free Super Bowl ad on the backs of creators (and in honor of Bard classmate Adam Yauch), I’m backing this project below. Check out Strawbees, an affordable, building toy that allows kids (and adults) to construct things out of scrap materials, namely straws. Strawbees are unisex, cheap, not mass-produced by Chinese labor; and so far, they’re not marketed in a way that leaves the consumer feeling kinda slimy.

ADDENDUM: See this story on The Trichordist. Did GoldieBlox violate the rules of the contest when it submitted a spot to Intuit that contained infringing material?

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Tags: Chez Paznienza GoldieBlox Intuit Super Bowl

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.

14 Comments

Faza (TCM) says:

February 1, 2014 at 12:12 pm

Y’know, it’s this whole thing of “building blocks for girls” that’s really got me perplexed. I mean, how are they “for girls”, exactly? And isn’t that a rather sexist attitude in the first place?

I mean, take Lego: it’s a toy that appeals equally to children (and adults) of all sexes (yes, I know there are technically two, but IRL it gets tricky). How is Lego not for girls? Or Strawbees, now that you mention it.

While we’re at it, science and engineering don’t have a gender, either – you’re into it (and good at it) or you are not. Is there really an attitude of keeping girls out of technical fields that needs fighting? So far, I can hear a lot of voices complaining that not enough women are going into these fields and very little in the way of clamouring that girls would love to do such things, but aren’t getting a chance (my anecdotal evidence demonstrates pretty much the opposite attitude). In that respect, GoldieBlox seems “Sillicon Valley” in another respect: they’re trying to solve a problem they think they can solve, not one that needs solving.

Reply
- David Newhoff says:
  
  February 1, 2014 at 1:38 pm
  
  Faza, for what it’s worth, Sterling claims to have done her research, which led to creating a product that incorporated narrative in order to attract young girls to the lessons. GoldieBlox is a character. A friend who is also a former teacher bought one of the products for her 7 year-old daughter and has good things to say about it. I don’t personally know of any sound reason to criticize the product itself, and the better it is, the stupider this rather sketchy marketing looks. Sterling has the potential to undermine her brand.
  
  Reply
  - Faza (TCM) says:
    
    February 2, 2014 at 4:52 am
    
    I’ve heard (read) tell of the narrative when the original GoldieBlox story exploded (the reviewing mom described it as “not very compelling”, or words to that effect – she wasn’t enamoured of the quality of the product itself, either, but I’ve also read more complimentary reviews). I don’t wish to criticize the product as such – I haven’t really seen it, for a start – but rather the marketing pitch: it seems strained to the point of breaking (and I’m not alone here).
    
    More importantly, the more I think about it, the more my doubts on the gender issue as USP seem justified. If “blocks for girls” was a product for which there is unsatisfied demand, one would think that Sterling would be able to pitch her idea without all the skullduggery.
    
    Notice how the narrative bit seems completely underplayed in all we’ve heard about GoldieBlox. A sensible company – we would think – would instead work towards establishing an independent female character that solves her problems with SCIENCE! I’m sure that they could drum up quite a bit of press around that – especially if they invested a bit of money in content creation aimed at the children in question (a simple idea would be a webcomic; a more ambitious project might be a series of animated shorts or some such – with today’s authoring and publishing technologies, the exercise isn’t exactly cost prohibitive).
    
    If you think about it, their entire marketing pitch seems to be hilariously mis-aimed: Sterling seems to be more focused on appealing to adults who might not even have children they could buy the toy for (as with the Beastie Boys debacle) than creating something that would get girls pestering their parents to get her product. Based on my experience, the main reason for young girls to be storming the pink aisle is to carry off armloads of loot. Frankly, I can’t blame ’em.
  - David Newhoff says:
    
    February 2, 2014 at 7:06 am
    
    Well, here you’ve echoed the question I’ve asked repeatedly on this subject, which is why the hell Sterling wants to make her brand famous for these shenanigans rather than its core selling proposition. It would appear to be a “publicity at any cost” approach, and one of the really frustrating things about it is that it might work. Later today, some several million Americans will be made aware of GoldieBlox, but the percentage of those who know anything about the controversy will still probably be quite low. Among those who do know about the Beasties, etc., a percentage will side with GB and the whole “disruptive” theme. So, between the uninformed and the supporters, GB could easily pick up a substantial number of new customers. From there, it will be about the products: are they good and popular enough to build long-term relationships? Even if they are, where I think Sterling is playing with fire is that she herself is central to the brand, and for all her “young girl power image,” she’s acting a lot like an old boy. Too much testosterone in the brain, and she might make a mistake that belies the feminist altruism in the brand. For instance, if today’s spot is provocative enough to get secondary coverage (something they might aim for), that will also raise the level of coverage on the controversy and may focus attention on the question as to whether or not contest rules were broken (see Trichordist). None of that may happen, but using controversy as a marketing tool can be double-edged sword. And to your point, why not just build a solid brand based on the real merits of the products?
James_J says:

February 1, 2014 at 12:54 pm

i still think the whole Goldieblox thing is a Google ‘think-tank’ creation. Think about how fast their lawyers sued (premeditated), think how quickly the Google ‘A-team’ lawyer firm hopped into the case (very quickly). i would love some investigative journalist (or the AG…) to dig into all the financing involved there…
Google has more money than God, and i’m sure when they can’t find another technology company to buy up and call their own, they get bored and think of ways to further their IP weakening goals.. they have unlimited resources; ‘Power Corrupts, Absolute Power Corrupts Absolutely’

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classicalmusictracks says:

February 4, 2014 at 9:14 am

To me, these are still the actions of a very young company. I do not think a business can survive on these tactics. In the end, people have to like the product and they have to like it over a span of many years if the company is to survive. I agree with everything said about the company’s marketing but in the end the product will win if little girls want to play with it. And little girls know nothing of feminism or girl power, they know what they like, they know what’s fun for them. A girl toy? I don’t think girls see through this lens.

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David says:

February 4, 2014 at 9:34 am

Not sure if I’ve mentioned this before, but the GoldieBlox advert (at least in its original form) also described the product as a ‘Rube Goldberg’ machine. The phrase ‘Rube Goldberg Machine’ is a trade mark of Rube Goldberg Inc. So did GoldieBlox obtain permission to use it? If not, I doubt that a ‘fair use’ defense would work. Admittedly, it could well be an honest mistake, as the phrase (like the names Hoover or Post It Note) is widely used in a generic sense and most people would not know that it is a trade mark.

Reply
- David Newhoff says:
  
  February 4, 2014 at 9:46 am
  
  Interesting. Didn’t Realize Rube Goldberg Machine™ was trademarked, but it looks like you’re right. That said, I am confident using Rube Goldberg as an adjective is fair use.
  
  Reply
  - Faza (TCM) says:
    
    February 5, 2014 at 12:52 pm
    
    Does fair use even apply to trade marks? Asking ‘coz I don’t know.
  - David Newhoff says:
    
    February 5, 2014 at 1:08 pm
    
    It can. If you capture trademarked images in a movie or certainly news reporting in the normal course of producing that work (e.g. in the background), it is typically fair use, but it may not be fair use if the trademarked logo or whatever is featured in some way. If I film an artist working on an Apple computer for either purely creative or even some promo purposes, their logo will likely be fair use, and it’s pretty hard to hide. If I’m making a controversial political piece and feature Apple in some way that can look like endorsement, they’re likely to have a problem with it. Likewise, altering logos, etc. can be a sticky deal, but as I said in a previous comment, if I wanted to portray Mickey Mouse as a Nazi in order to make social commentary, I’m pretty sure I’d have a solid fair use case.
  - Faza (TCM) says:
    
    February 6, 2014 at 1:04 pm
    
    I’m getting seriously out of my depth here, but I’m not sure that most of the uses you’ve listed even fall within the ambit of trademark law.
    
    Trade marks – I understand – are used to identify the source of a product or service and the exclusive rights conferred to the trade mark holder apply not so much to any representation of the mark, but in cases where the consumer may be mislead as to what he or she is getting. Trade marks, to the best of my knowledge, apply to specific market sectors and specific territories
    
    Thus, the example you give of trade marks being visible in the background wouldn’t ever attract trade mark law. Nor does the use of trade marked words when reporting on the product in question, for example. The “presumed endorsement” issue is a tricky thing – can’t say if and how trade marks are a factor. As for Nazi Mickey Mouse, here again I believe that it would depend on the character of the use – for instance, if you started printing Nazi Mickey T-shirts, even social commentary might not save you (I’m thinking that Disney could easily make a case that customers may be mislead into thinking that these were Disney products). On the other hand, having Nazi Mickey as an illustration to a piece on Walt Disney’s supposed anti-semitism and ties to the Nazi party would take us out of the realm of trade marks (since Disney does not brand its news reporting – if it even does any, I don’t know – with Mickey Mouse) and back to copyright law, where fair use does apply.
  - David Newhoff says:
    
    February 6, 2014 at 1:15 pm
    
    You’re absolutely right that trademark is often about representation or misrepresentation; and I agree that were I to merchandise Nazi Mickey rather than, say, make a one-off artistic statement, the Disney company would probably have a valid right to stop me. Regardless of reportage, though, Mickey is a trademarked image, and making Nazi Mickey as a cultural statement was the first hypothetical that came to mind. It’s also one that Disney might not like, but I think would be powerless to stop. On another note, I had a trademarked image in a film of mine, and when an IP attorney saw it, she said, “you could have a problem with that, but it’s arguably a fair use.” This suggests to me that the principle can be applied here.
  - David Newhoff says:
    
    February 9, 2014 at 7:10 am
    
    As if on cue, Faza, here’s a fun one. Do these guys legitimately think they have a fair use claim on this trademark by opening a parody coffee shop, or are they parodying dumb fair use claims themselves? The tone of the FAQ suggest it could be either. http://laist.com/2014/02/08/dumb_starbucks_thats_the_actual_nam.php