This week, a US toy firm withdrew a viral ad that used a parody of a song by the Brooklyn hip hop greats the Beastie Boys, after the band challenged the company’s right to use their tune in a commercial.
The toy company, GoldieBlox, has now re-released the ad without the parody song. It looks a lot like a victory for the Brooklyn rappers, right?
It’s not. And here’s why.
The facts of the case
GoldieBlox specialises in construction toys for girls, with mottos like “building games for girls to inspire future engineers” and “disrupting the pink aisle” in toy shops.
The Beastie Boys are the legendary US hip hop band, one of only three hip hop groups in the Rock and Roll Hall of Fame. They’re also famous for their commitment not to allow their music to be used in commercial advertising.
Recently deceased band member Adam Yauch, aka MCA, included a clause in his will prohibiting the use of his music in advertising.
Fight for your right (to litigate)
The problem started with a video featuring three girls playing with an insanely complicated Rube Goldberg machine that switches the TV channel by triggering a long chain reaction.
The Beastie Boys’ version features such enlightened lyrics as:
Girls – to do the dishes
Girls – to clean up my room
Girls – to do the laundry
and in the bathroom
Meanwhile, the GoldieBlox version talked about:
Girls – to build the spaceship
Girls – to code the new app
Girls – to grow up knowing
That they can engineer that
The Beastie Boys sicced their lawyers onto the case, who wrote GoldieBlox the usual cease-and-desist letter, claiming copyright infringement and suggesting that the unauthorised use of the Beastie’s intellectual property was a “big problem” that has a “very significant impact” on the band.
GoldieBlox retaliated by filing suit in the US Federal Court, seeking a declaration that it didn’t infringe copyright, and asking for an injunction to stop the Beastie Boys from suing them.
Seeking a declaration is an uncommon but permissible action when a defendant is threatened with copyright infringement but has a strong basis for rejecting the claim: in this case, the “fair use” defence in section 107 of the US Copyright Act.
GoldieBlox was asking the court to determine that the use of Girls in the clip was permitted as a parody, one of the canonical exemplars of fair use in the US copyright system.
Fair use relies on four factors: the purpose and character of the defendant’s (GoldieBlox) use, the nature of the plaintiff’s (Beastie Boys) work, the amount of the defendant’s use, and the effect of the defendant’s use on the potential market for the plaintiff’s work.
The main issue in this case is the character of the defendant’s use, because highly transformative uses – in this case, that the GoldieBlox song was changed in form and meaning to the original – are routinely excused from infringement. GoldieBlox claimed it was radically transforming the Beastie Boys’ song.
The most common type of acceptable transformation is a parody, where a defendant adapts a copyright work to comment on that work.
Famously, the notoriously rude rappers 2 Live Crew released a song that modified the lyrics of Roy Orbison’s Oh, Pretty Woman in order to comment on what they saw as the sappy sensibility of the original:
In the ensuing 2 Live Crew court case, Campbell v. Acuff-Rose, the US Supreme Court decided this kind of parodic use must be allowed; how else could artists ridicule or otherwise critically examine existing artistic works?
No sleep till settlement
If GoldieBlox v. Beastie Boys went ahead, the other fair use factors would be relevant, and the fact GoldieBlox was using the track for commercial purposes would weigh against it. So would the fact that the band has taken a principled stand against the use of their music in commercials.
But if the case ever goes to trial, there is absolutely no question that the toy company will win.
The GoldieBlox ad reinterpeted the lyrics of the original Beastie Boys’ track, reimagining it as a girl-power anthem and implicitly commenting on the negative imagery in the original.
Although GoldieBlox’s lawyers probably told its CEO the outcome of the litigation was uncertain, there is really no question that this is a parody. Any US copyright lawyer would happily wager their annual salary on a win for those adorable girls with their crazy invention.
But, on Wednesday, GoldieBlox pulled the original video, and substituted it with one that has an inoffensive music track:
Why? Simple: the toy company got millions of dollars of free advertising out of this, and continuing to run this lawsuit would cost tons of money, win or lose. Pursuing the case would jeapordise the significant gains the company has already made through the free exposure the case gave the firm.
And for their part, the Beasties wanted this whole thing to go away as fast as possible.
Although there is no formal announcement, it’s almost certain that they’ve settled this thing out, and both parties are going walk away and try to forget it ever happened.
In the end it looks like the Beasties won. But really, in both the courts of law and of public opinion, GoldieBlox have the boys from Brooklyn beaten cold.