I thought from the GoldieBlox online commercial that the Beastie Boys were involved with the company which creates these toys for future inventors, or at least endorsed it somehow, since their name was attached to the video and their song “Girls” was used. I guess a lot of people thought that, and the Beastie Boys’ name and the song helped boost the video into viral status. It’s now a finalist in a contest sponsored by Intuit to air a commercial during the 2014 Super Bowl.
And while the Beastie Boys publicly support the message of the commercial and its product, they never gave permission for the song “Girls” to be parodied, and more importantly, for their name to be used in conjunction with the ad. This was a very prominent part of the late Beastie Boys member Adam Yauch’s will:
Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.
Rolling Stone reports that the phrase
any music or any artistic property
was written in Yauch’s own hand. He died of cancer in May, 2012. The Beastie Boys wrote the music together, so “Girls” falls under his will. So basically, GoldieBlox has defied and disrespected a dying man’s wishes for their own purposes.
Lawyers for the band, which does not permit use of their name or music in ads, contacted the company to ask what was going on and explained that GoldieBlox version was
a copyright infringement, is not a fair use, and that GoldieBlox’s unauthorized use of the Beastie Boys intellectual property is a “big problem” that has a “very significant impact.”
So GoldieBlox filed a preemptive suit. (And I hope they don’t shift strategies, calling the whaaa-mublance and starting to bawl about how they are being picked on by the big mean rock stars and their big mean record companies; that would be conduct unbecoming. But they should fire whoever told them it was a totally cool, no problem thing to just blithely parody a major hit and use the band’s name to promote their product.)
You read that right: GoldieBlox is suing the Beastie Boys. And their record labels and publishing companies. GoldieBlox is hoping for
declaratory judgment and injunctive relief
with the hope that their unauthorized use of the song will be declared Fair Use parody. They want to protect their version of the song, it’s integral to the GoldieBlox promo video that’s received almost 9 million views on YouTube. (Using the Beastie Boys’ name to promote the video isn’t gonna help the case at all, that was a very foolish move). Here are the standards for considering Fair Use:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Well, the song was clearly parodied for commercial purposes. One could argue that Weird Al Yankovic also parodies for commercial purposes, but he secures permission and royalties are paid. And he is not selling a separate product, simply the song itself. The tune and phrasing of the original is used, along the with distinctive chorus. Weird Al changes the words completely, along with the overall meaning. Again, he pays royalties. But is this just about money? The Beasties say no, it’s about their principles: They don’t allow their music to be used in commercials, period. And they don’t allow the band’s name to be used in commercials. And the GoldieBlox video is an ad. It may be on YouTube, but it’s an ad. And it could be shown on the Super Bowl.
Like many of the millions of people who have seen your toy commercial ‘GoldieBlox, Rube Goldberg & the Beastie Boys,’ we were very impressed by the creativity and the message behind your ad.
We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.
As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song Girls had been used in your ad without our permission, YOU sued US.
In their court papers, GoldieBlox makes the point:
Set to the tune of ‘Girls’ but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities — exactly the opposite of the message of the original. They are also shown engaging in activities far beyond what the Beastie Boys song would permit. GoldieBlox created its parody video specifically to comment on the Beastie Boys song, and to further the company’s goal to break down gender stereotypes.
Actually the band’s original song was pretty much a parody of macho attitudes.
I wonder though, maybe GoldieBlox anticipated the Beasties’ reaction and figured that (along with making the world better for girls with their cool toys), they would get additional PR, and also pry open the door for greater Fair Use. This could end up being very expensive battle, and the odds of it being resolved before the Super Bowl are slim.
It will be interesting to see how this plays out, especially since Felix Salmon at Reuters points out this isn’t the first time GoldieBlox has used a song without permission for their online videos. The Silicon Valley startup’s first video “GoldieBlox Breaks into Toys R Us” used Queen’s “We Are the Champions” and there was no parody of lyrics at all. I am starting to like this company less and less.