1. Facts
In November of 2013, a company called GoldieBlox released a video ad set to the tune of the Beastie Boys’ 1986 song titled “Girls,” but with different lyrics, sung by girls instead of male voices. (Link to video: http://www.slate.com/blogs/xx_factor/2013/11/19/goldieblox_commercial_rewrites_the_beastie_boys_urges_young_girls_to_pursue.html ). Within the month, three events unfolded:
1) The surviving Beastie Boys members threatened to sue GoldieBlox for copyright infringement.
2) GoldieBlox then filed a pre-emptive claim in California court, asking to have their “Girls” video declared legitimate “fair use” and thus not copyright violation.
3) GoldieBlox announces that their video is legitimate “fair use” but nevertheless updates this video with a different soundtrack. They cite their motive for changing the soundtrack as love and respect for the Beastie Boys, as well as their respect for the wish in the will of a Beastie Boys member (who had passed away) to never have his music used in any ads. (Updated video: https://www.youtube.com/watch?v=IIGyVa5Xftw )
On December 10, 2013, the Beastie Boys filed a legal complaint of copyright and trademark violation by GoldieBlox. (In November the video had gone viral, receiving over 9 millions views, in part because of the legal and gender controversies). We will discuss only the copyright issues for our blog entry.
2. Fair Use Criteria
We will argue that GoldieBlox has a very strong case for fair use, since their video seems to be a parody with a strong transformative effect on the original video. There should therefore be no copyright violation. However, we will still need to weigh all four factors that determine fair use, since even in strong parody cases, the Supreme Court has ruled:
“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. The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors.” (Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994))
1) The first criterion of fair use pertains to the “the purpose and character of the use.”
Although the GoldieBlox video ad is clearly for commercial purpose (for their company, if not a specific toy), there are strong precedents for uses that are “transformative” as per both Perfect 10, Inc. v. Amazon.com, Inc. and Campbell v. Acuff-Rose Music. The more strongly transformative a work, the more that factor would outweigh the commercial goals. Both Perfect 10, Inc. v. Amazon.com, Inc. and Campbell v. Acuff-Rose Music cite the legitimacy of strongly transformative use. GoldieBlox has a strong case for parody because while the Beastie Boys song described sexist gender roles to a point of absurd exaggeration, the GoldieBlox version used the same tune to show girls rejecting traditionally stereotyped passive, domestic, or beauty-oriented roles in favor of engineering and technical creativity. Their progressive message serves purposes that can be also be seen as educational, given our society’s deep-rooted problems in gender equity (in STEM work specifically but also across the entirety of society). The transformative character of the parody is almost too obvious to belabor here, but here are quotations from the two different versions, and links to the two different lyrics. Beastie Boys,”Girls – to do the dishes…Girls – to clean up my room,” vs. GoldieBlox, “we are all more than princess maids…Girls, to build a spaceship…Girls, to code a new app.” (http://www.metrolyrics.com/girls-lyrics-beastie-boys.html , http://rapgenius.com/Goldieblox-girls-lyrics ) It is hard to imagine a more explicit transformation of a song’s meaning into its opposite in order to convey a criticism and commentary.
2) The nature of the copyrighted work
The Beastie Boys original song is a creative expression and a work of music, and so clearly deserves full copyright protection as a typical example of what copyright law is designed to protect and encourage.
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The entirety of the Beastie Boys song (with different lyrics) was used, and neither party disputes that fact
4) the effect of the use upon the potential market for or value of the copyrighted work
Ironically, the Beastie Boy’s copyrighted song may actually go up in popularity and value, thanks to the media frenzy around this controversy (as well as the quality and creativity of the ad). In addition, the Beastie Boys are not claiming financial injury of any kind. So it seems unlikely that the ad will be penalized for copyright violation on the basis of this factor.
3. Lingering Questions
The case will likely be determined by the first of the four fair use factors. We have argued that the precedents and specific case for parody is quite strong for this example, given the past importance placed on the freedom to create highly transformative works. We might even ask whether any amount of commercialism would be large enough to outweigh a strong parody.
One of our writers, Kiki, published the toy commercial only to her friends on Facebook late last year. Apparently she shared the video without the awareness that this video could be at risk of breaching the law. To some extent, people like Kiki helped the spread of the video and thus it became viral. Suppose that GoldieBlox failed in this case, should the personal use of infringed copyrighted work be enjoined? Social media communications have virtualized traditionally private spaces, and technology beyond iFrames have allowed stronger embedding and linking within our content sharing.
SIDE NOTE:
Pertaining to another part of our reading, we recommend improvements to Section 117.
During our exploration for blog topic, we find that all sections in copyright clearly defined its subject matter as content: literary works, musical works etc. Section 117 to some extent defined the copyright of software (and implicitly, games) but addressed the work with respect to physical copies. Nowadays, especially with the development of cloud services, back-ups in remote servers (possibly distributed) replace the duplication or adaptation in case of maintenance or repair. As software goes online, the copyright clause is in need of improvement accordingly. The “machine” referred to in the clause does not have simple boundaries anymore in our current era of distributed computing (distributed hardware, functionalities, infrastructure, platforms, applications, and software). In Mulligan, Han, Burstein, “How DRM Content Systems Disrupt Expectations of Personal Use, ” the scope was explicitly aimed at our traditional expectations of music and film media consumption, but we are rapidly developing new expectations and norms around both newer media such as games and software(interactive media apps), and newer sharing or experience mechanisms.
— Renu Bora and Kiki Liu
Sources
Beastie Boys original “Girls” song
https://www.youtube.com/watch?v=0e8j3-TuzCs
GoldieBlox original ad video
http://www.slate.com/blogs/xx_factor/2013/11/19/goldieblox_commercial_rewrites_the_beastie_boys_urges_young_girls_to_pursue.html
GoldieBlox updated ad video
https://www.youtube.com/watch?v=IIGyVa5Xftw
U.S. Code › Title 17 U.S. Code: Title 17 – COPYRIGHTS
http://www.law.cornell.edu/uscode/text/17
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
http://supreme.justia.com/cases/federal/us/510/569/case.html
Perfect 10, Inc. v. Amazon.com, Inc.508 F.3d 1146 (9th Cir. 2007)
http://www.cnn.com/2013/11/27/showbiz/beastie-boys-girls-ad-pulled/
http://www.cnn.com/2013/11/20/living/goldieblox-ad-toys-girls/index.html
Mulligan, Han, Burstein, “How DRM Content Systems Disrupt Expectations of Personal Use”