Beastie Boys, Goldieblox, & Fair Use

At this point, most people who read my blog have a pretty good understanding of fair use. We understand the basic principles: we know that a fair use analysis considers four factors, and even commercial uses of a copyrighted work can be fair use, as long as the other factors point to fair use. One particularly protected area is in parody, where an artist is permitted to use of some elements of a prior original work in order to create a new composition that, in some way, comments on that original. Right?

We also know that fair use is one of the hardest, most thorny issues in intellectual property law. In the last few days, a situation has come up that has really done a fine job of illustrating why fair use is such a tricky area, and it points out the biggest thing so many artists forget: it isn’t enough to figure out whether or not a use is fair. The law isn’t all that matters. Let’s start with a little history lesson:

Three MCs and a song about girls

In 1986, the Beastie Boys recorded their (not really) debut album, Licensed to Ill. The album was almost entirely tongue in cheek: a “goof” on the braggadocio of rap music and party rock in which the Beasties depicted themselves as Wild West gunfighters, drunken rock stars, and womanizing louts, and it included a song called “Girls.” In the spirit of the rest of the album, “Girls” was a sexist fantasy about chasing after women (and not getting any), and wanting women to clean the house and hop into bed. Most people never understood that it was meant to be a joke, and the Beastie Boys quickly distanced themselves from the song. They rarely performed the song live, and on subsequent albums the Beasties have rapped about their respect for women.

In legal circles, the Beastie Boys are famous for their support of fair use and other use of copyrighted works — not just lip-service support, but their many legal battles to establish just how much of a work can be used (for instance, see Newton v. Diamond). The Beasties are the last people anyone would expect to be predatory with their copyrighted works.

Goldieblox and a video about girls

On November 18, a really great internet startup called Goldieblox posted a video on YouTube called “GoldieBlox, Rube Goldberg, & Beastie Boys.” The video is a commercial for Goldieblox’s construction toys aimed at little girls, and in the video, girls use the Goldieblox gear to construct an elaborate Rube Goldberg device while singing “Girls”…with new, improved lyrics. Lyrics about how girls’ toys are pink and pretty, and everything else is for boys. Lyrics about how girls can build spaceships and code apps. The video is, let’s face it, awesome.

It was also made without the Beastie Boys’ permission.

The Beastie Boys don’t license their music for commercials. They never have; they are currently suing Monster Energy for using their music in promotional clips without authorization. In fact, when much-loved Beastie Boy Adam Yauch died of cancer in May 2012, he left a will that prohibits the use of his music or likeness in commercials or advertising, stating: “in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.” You might say this unwillingness to use music for ads is a big deal for them.

The backlash begins

A few days later, the Beastie Boys saw the video. They sent Goldieblox a letter explaining that while they liked they video, they didn’t allow their songs to be used in advertising, and they asked why Goldieblox was using “Girls.” Goldieblox immediately (on Nov. 21) went to court and sued, asking for a declaratory judgment: in short, Goldieblox asked the court to rule on whether or not the use was infringing.

And this is why we have such a difficult situation. Goldieblox is probably right in nearly every legal way: the use is fair. The use is a parody. The use doesn’t affect the Beastie Boys’ own ability to license their song, because they would never license it for a commercial anyway (and, for those who might be about to ask, yes, it’s totally okay to make a fair use of another work for commercial purposes). The use does not affect the market for the original song. Goldieblox is, legally, almost certainly in the right.

But that doesn’t mean Goldieblox is right. Oh yes, it followed the law. Goldieblox checked to make sure its use was okay from a fair use perspective. But now what? Now it’s not only in the middle of an expensive lawsuit, it also looks like the bad guy: the company who took a song from beloved musical heroes who’ve tried to honor the final wish of a fallen band member. It’s also in the ugly position of trying to paint the Beastie Boys as copyright bullies: a tactic that worked for about 24 hours, until Beastie Boy Mike Diamond sent an open letter to Goldieblox through the New York Times clarifying that Goldieblox sued them, not the other way around.

In the last day or two, the backlash against Goldieblox has been tremendous. The little startup has gone from viral video champion to villain as bloggers and journalists raised the argument that not only is the company playing dirty in its fight against the Beastie Boys, it’s also not really as girl-positive as the video claims. Rather than offering young girls STEM toys and encouraging them to build and learn, it seems that Goldieblox is locking little girls into the princess paradigm and handing them a pretty pink hammer so they can help build a parade float for their pretty princess friends.

So what did Goldieblox do wrong, and what can we learn?

Goldieblox didn’t try asking permission first. If Goldieblox had asked first, it would have learned that Beastie Boys don’t license their music for commercials…and maybe Goldieblox could have created a solution that allowed the awesome viral video to go forward with the blessing and support of the musicians they were parodying, instead of creating a controversy. If not, at least it could have had the discussion and decided whether or not to proceed once it had all the information, assessing not just the legal issues but also the public relations concerns.

We live in a world of unprecedented access to legal information. It’s easy to read an article about how to avoid legal liability, or how to make fair use of content. However, we also live in a world of unprecedented access to content creators (even famous ones), and there’s nothing as safe as a permitted use.

So it’s just like kindergarten: if you want to use somebody’s stuff, ask. Maybe they’ll say yes. Maybe they won’t, and it’ll still be okay to use it anyway, but at least then you can make a fully informed decision. Because in addition to doing the legal thing, we also have to do the right thing.

Edit: Today (Nov. 27), Goldieblox posted an open letter to the Beastie Boys asking if they could all just get along, and removed the song from the video. The lawsuit is still active, but Goldieblox states that it is ready to end it “as long as [they] will no longer be under threat” of an infringement suit. Isn’t it sad to think of how much negativity and bad press could have been spared if they’d just asked first?

Edit again! Newer developments have necessitated a sequel to this post. Go check it out! (I’m not typing out the scratch noises.)