Let me start by saying, I get why the Beastie Boy’s don’t want elements of their song Girls – even when transformed via new lyrics - used in a GoldieBlox ad. Their moral claim – especially in light of Adam Yauch’s dying wish – makes a compelling argument.
But I'm not going to discuss morality in this post. This post is simply about the law of fair use.
(Let me note in passing, I agree that morality - of course - should be part of how we behave. And there might be other legal theories, besides copyright, that could be part of the argument about whether this use of Girls is legal and/or appropriate.)
On the narrow subject of fair use (which my IPR students know is a legal defense against a claim of copyright infringement, where the unpermissioned use of a copyright work is OK), the US Supreme Court has said that the use “of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence… than the sale of a parody for its own sake." Campbell, 510 U.S. at 585, 114 S.Ct. at 1174. But notice: the Court has expressly left room for an unpermissioned parody that simply advertises a product.
What kind of unpermissioned parody would be OK in an ad? The Court has said "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Id. at 579, 114 S.Ct. at 1171.
In other words, the fact that something valuable was taken from The Beastie Boys to sell a product is NOT dispositive. And, because the lyrics in the Girls parody ad no longer support sexist stereotypes, but offer another perspective - a transformative use - the commercialism of the use is NOT dispositive.
Basically, if we follow the Campbell decision, US law says fair use can include a parody for commercial purposes like an ad – if the parody is transformative.
This statement of the law sounds really good for GoldieBlox.
Shouldn’t the Beasties be able to control commercial uses of their songs?
Why allow fair use?
Fair use exists because the core purpose of copyright is to foster the creation and dissemination of the greatest number of creative works – not to protect the LIMITED (in time and scope) property interest that copyright conferred on the Beasties or other authors.
To put it more bluntly, the rights that the Beasties currently hold simply don’t extend to legitimate parodies. Thus, their (even Adam Yauch’s dying) wishes cannot legally bind people who want to make parodies.
And, supporters of the First Amendment tend to understand that fair use is an important mechanism that allows all of us to comment, criticize, or parody a work without seeking permission.
Fair use is a key part of how culture moves forward.
At this point, it probably bears mentioning that virtually every musical artist has made unpermissioned use of existing works to create new works. For example, before getting too worked-up about the way the Beasties are being ripped off, try listening to the Isley Brothers’ Shout and the Beasties’ Girls side-by-side.
Because this kind of taking (what Newton called building “on the shoulders of giants”) is so vital, I think it was a wise move by the Beasties to acknowledge the positives in the GoldieBlox ad, even while complaining about the way they were treated (i.e., their PR firm issued an open letter that read in part “we were very impressed by the creativity and the message behind your ad”).
Apparently what has the surviving Beasties so upset is not a legitimate fair use, but that someone is crassly using their work in an ad without permission and that the response to the Beasties’ letter to GoldieBlox (the non-public one that the Beasties claim was simply seeking clarification, but that GoldieBlox claims was implicitly threatening legal action) was a request for declaratory judgment initiated by GoldieBlox to pre-emptively settle whether the Beasties could prevent the use of the parody in an ad.
Although the Beasties have complained that GoldieBlox "sued us," the action that GoldieBlox has initiated is not an ordinary lawsuit. Instead, as Andy Baio explains in a very helpful November 26th, 2013 post: "Unlike typical lawsuits, Goldieblox isn't seeking damages. They're asking the court to [simply] issue an opinion without ordering Beastie Boys to do anything in particular or pay damages, beyond possibly their own legal expenses."
I get why the Beasties, as content owners who over the last 25 years have grown accustomed to controlling the exploitation of their work, feel misused…
But they did (have their lawyers?) send a letter where a foreseeable response was a request for clarification from a court in the form of a declaratory judgment...
And, finally and most importantly, is this really the side of the fair use debate that the Beasties want to be on?
Is it possible for them to make a public fuss about this particular parody, without lending support to the innovation-stifling corporate interests that are opposed to the right of artists to take ideas and elements from the existing culture and to rework them - transform them - into new works that contribute to our culture?
Just because this particular parody sells a toy, can the GoldieBlox Girls ad be squashed without harming the freedom to create other culture-enhancing parodies?
Are the Beasties really prepared to draw a line that distinguishes this parody from other unpermissioned uses that might contribute to (be a crucial condition for?) a flourishing culture?
In short, I get why the Beasties are pissed…. But, on the facts that are currently available, I’d say the highly transformative character of the GoldieBlox ad trumps its admittedly commercial purpose and under the copyright law as it exists today the Beasties should probably let this one go.
UPDATE: December 1st, 2013 As reported in consumerist.com, GoldieBlox took the Beastie Boys parody ad down on November 27th, 2013 - posting the following on their blog: “We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising.” They apparently had already posted this version of the ad - with an inoffensive instrumental track - on YouTube:
UPDATE: March 19th, 2014 As reported by adweek.com, "the legal battle between GoldieBlox and the Beastie Boys appears to be winding down, as the band has agreed to drop its lawsuit against the toy maker over the unauthorized use of the song "Girls" in a commercial—in exchange for an apology and a donation to charity."