Beastie Boys, Goldieblox, & Fair Use Part II: Electric Boogaloo

Oh, come on, I had to. I’ve wanted to use that in a blog post title for ages.

Last month, I talked about the mess Goldieblox and the Beastie Boys had gotten themselves into. A quick recap: Goldieblox made an ad on YouTube parodying one of the Beastie Boys’ songs, and it went viral. The Beastie Boys don’t let their songs be used in advertising. Much finger-pointing ensued, and Goldieblox sued the Beasties for declaratory judgment before putting up a CAN’T WE ALL JUST GET ALONG post. And then things went sort of quiet, while the internet sorted itself into Team Goldieblox, Team Beastie Boys, and Team Who The Hell Cares.

And then…

Last week, the Beastie Boys countersued Goldieblox. The counter-complaint (it’s a counter-complaint because Goldieblox sued first by asking the court for declaratory judgment, and the Beastie Boys had never gotten to make a complaint in the first place) is an arsenal: it’s not just copyright infringement but also trademark infringement, false advertisement, false endorsement. unfair competition, and misappropriation of right of publicity. They’ve thrown everything they could at Goldieblox. And interestingly, they’ve asked for the profits Goldieblox has made from the video.

Okay, that’s a lot to unpack. Let’s start with the doubletake:

Why are the Beastie Boys still so mad?

Goldieblox tried to make nice, right? Well…yes and no. Sure, Goldieblox put up a white flag blog post. But it never ended its lawsuit against the Beastie Boys. So Goldieblox was effectively standing there with one hand offering a handshake and the other holding a loaded gun.

And this was after Goldieblox had made similar videos rewriting Queen’s “We Are The Champions,” for which they never got licensing rights either, as well as videos using songs by Daft Punk, Kaskade, and other artists. These videos have now been pulled or made private, as has “I Want A Goat,” a similar video Goldieblox’s CEO and founder made for a fundraising campaign in India, for which she and her husband rewrote the lyrics to Lonely Island’s “I’m On A Boat” (presumably without getting the licensing rights). As the Beastie Boys say in their counter-complaint, “unfortunately, rather than developing an original advertising campaign to inspire its customers to create and innovate, GoldieBlox has instead developed an advertising campaign that condones and encourages stealing from others.”

Most importantly, though, it’s an ad, and it isn’t just any ad. It’s an ad that Goldieblox has submitted to a contest Intuit is hosting that will allow a small business to air a commercial during the Super Bowl, and Goldieblox’s ad is one of the four finalists. Goldieblox never withdrew the ad from the contest, and it is still eligible for the Super Bowl spot. While this is not mentioned in the prayer for declaratory judgment and is only briefly touched on in the counterclaim, I believe it is the crux of why the Beastie Boys went after Goldieblox as hard as they did. If that commercial airs during the biggest advertising day of the year, it not only stands to give Goldieblox some great advertising, but it potentially harms the Beastie Boys’ effort to keep their music from being associated with commercials and their names from being associated with advertising.

But it’s fair use, right?

Maybe. Probably. I think Goldieblox has a very good fair use argument. But nothing is ever 100% fair use until a judge says it is.

It may be an outdated exaggeration to say, as Larry Lessig does, that “Fair use is the right to hire a lawyer,” but to an extent it’s true: while we have a good deal of strong case law and precedent that gives us guidelines, ultimately fair use is what a court says it is. In this case, as I discussed in my last post, it is entirely possible for commercial use, even an advertisement, to also be fair use. However, the use of a work, even the parody of a work, in an advertisement weighs against a finding of fair use, but it’s only one thing to consider.

It’s worth discussing Goldieblox and parody, though. There’s a difference between parody and satire. A parody is a work that imitates another work in order to poke fun at or comment on something about the work itself. A satire is a work that pokes fun at or comments on something external to the work: the world in general, cultural issues, political issues, and so forth. The “Girls” video is a parody because the original song was misogynistic, and the Goldieblox video sings about empowering young girls. It comments on the work itself. However, looking at it in the context of Goldieblox’s larger campaign of taking songs from popular musicians and making funny, cute, derivative songs from them — such as turning “I’m On A Boat” into “I Want A Goat” — it begins to look less like an insightful commentary and more like coincidence. “I Want A Goat” does not comment on the message of “I’m On A Boat.” It just happens to fit the rhyme scheme. Still parody, but not a particularly inspiring one.

Okay, what about those damages? What profits? It’s YouTube!

Now that’s an interesting issue. How do you value damages for copyright infringement on social media? Shameless plug: I have some friends working on a really awesome article on that, coming out in a few months. In the meantime, we can always just speculate.

It’s a YouTube video, sure. But it’s also an ad, and it has an associated product. That product is now in the top 25 on in all toys and games. It’s also being sold at some other retailers, including Toys ‘R’ Us and smaller stores. You could track sales of the toy before the video launched and after the video launched. The Beastie Boys will argue that those increased sales are due to the video and its association with their song. Goldieblox, however, will point out that not only did they have a successful Kickstarter campaign last year, but in the weeks since the video launched, the holiday season has begun and parents are shopping for gifts for children. These purchases may not be attributable to the video.

Things may get really complex, though, if the Goldieblox video wins the Intuit contest and airs during the Super Bowl. An average 30-second ad spot cost $4 million for the 2013 Super Bowl. Will this count as profit or gain? Most likely. Certainly any resulting sales of the product attributable to the ad would.

Then they’d all have to argue about what proportion of those sales are due to the song, and what proportion are due to the use of the Beastie Boys’ name, and what proportion are due to the cute kids, and what proportion are due to the action in the video, and what proportion are due to the actual toy itself, and what proportion are due to the Goldieblox brand and reputation, and….

…now you know why we can’t have nice things.

How do I make sure this doesn’t happen to me?

That one’s super easy.

  • Are you making a parody song or using another artist’s work? Contact the artist and ask permission. That’s what Weird Al does (you notice he never covers any Prince songs? Prince never gives permission, and even though he’s pretty safe in the Fair Use Zone, Weird Al prefers to have the original artist’s permission). It’s amazing what you can do with permission.
  • Can’t get permission? Give some serious thought as to whether or not your idea is worth it. Fair use exists to give new creators the ability to innovate, but if your innovation is so close to someone else’s original work that they feel a need to protect it, you may need to defend your idea. Is it something you feel strongly enough about to defend? If it is, then you might talk to someone who knows fair use to make sure you minimize your risk.
  • Have you been using another artist’s work and find yourself on the receiving end of legal questions? Politely try to work things out amicably first. The creator of the This Charming Charlie Tumblr received several takedown notices from Universal Music, so she and some other fans reached out to Morrissey. Morrissey issued a statement that he was not represented by Universal, and he supported the Tumblr and hoped it would continue. As I said before, we live in an age of unprecedented access to artists: try asking for permission, even after the fact.
  • Have things progressed to the stage of legal threats or even legal action? Keep a level head. There’s no sense coming out swinging and then having to take things back.