The Beastie Boys’ recent battle with upstart toy company GoldieBlox is one of the most contentious copyright conflicts in recent memory. Although many of us thought the episode was winding to a close, it now looks like this was premature: last week, the Beastie Boys filed their defense and counterclaims in a California federal court. Here’s a recap of the story so far.
First, GoldieBlox created an online advertisement titled “GoldieBlox, Rube Goldberg & The Beastie Boys” that used the 1986 Beasties hit “Girls”—a song which expressed juvenile sexist attitudes, possibly with satiric intent. The GoldieBlox ad changed the song’s sophomoric lyrics to mock the way toys are typically marketed to girls, while promoting products that cultivate girls’ interest in physics & engineering. The video went viral, earning widespread media attention and racking up millions of views.
Upon learning of the ad, Beastie Boys reps contacted GoldieBlox, reminding the toy company that the Beasties have never licensed their music for use in advertising, and that shortly before his tragic passing in 2012, band member Adam Yauch even stipulated in his will that they continue to deny such uses.
In a provocative move, on November 22, GoldieBlox filed for a declaratory injunction in a California federal court. Essentially, the suit asks the court to declare that the Beastie Boys are wrong, that no copyright infringement occurred, and that the video qualifies as fair use, since “GoldieBlox created its parody video with specific goals to make fun of the Beastie Boys song, and to further the company’s goal to break down gender stereotypes.”
The Beastie Boys responded with an open letter, praising the creativity and empowering message of the ad but concluding nonetheless:
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.
Goldieblox founder Debra Sterling followed up with an open letter of her own saying that she wished to respect the Beasties’ wishes, and would take the video down. Many (us included!) figured the dispute was over. But as it turns out…
1. GoldieBlox apparently never actually withdrew their lawsuit.
GoldieBlox’s open letter said that they were prepared to withdraw if the Beasties agreed not to pursue any legal action. We don’t know why this agreement wasn’t achieved (The Hollywood Reporter cites unnamed sources claiming that the Beasties asked for a better apology and a donation to charity), but because GoldieBlox ultimately didn’t withdraw their suit, the Beasties were obligated to respond. Media headlines like “The Beastie Boys Sue After All,” while technically accurate, seem to miss this important context. And so…
2. The Beastie Boys’ court filing begins by offering their defense against Goldieblox’s lawsuit.
The Beasties’ first affirmative defense is that GoldieBlox failed to state a claim on which relief (in the form of an injunction) could be grounded. The original complaint alleged that “lawyers for the Beastie Boys claim that the parody video is a copyright infringement, is not a fair use, and that GoldieBlox’s use of the Beastie Boys intellectual property is a ‘big problem’ that has a ‘very significant impact.’” The Beasties’ response essentially argues that you can’t preemptively sue someone for having an opinion about whether something is fair use without claiming that they’ve acted on that opinion in some relevant way. When GoldieBlox filed suit, the Beasties hadn’t filed a legal complaint or even sent a demand letter.
The second affirmative defense is that GoldieBlox has “unclean hands,” meaning that they’re behaving unethically or in bad faith themselves, and thus aren’t entitled to obtain an injunction. Among the supporting claims here: Goldieblox has executed a pattern of unlicensed uses, including a similar appropriation of a Queen song.
3. Fair Use isn’t a simple call to make.
When this story broke last month, reactions to the initial GoldieBlox suit ranged from “It can’t possibly be fair use because it’s a commercial!” to “It doesn’t matter whether it’s a commercial!” However, the actual case law is more nuanced, if not straight up fuzzier.
The widespread notion that commercial use is never fair use is perhaps a corollary to the similarly widespread and similarly incorrect notion that non-commercial use is always fair use. In reality, the commercial nature of any particular use is one of four factors weighed by a judge. Meaning, the fact that the song was used for advertising is not necessarily a dealbreaker, nor is it irrelevant. As FMC’s Casey Rae recently wrote:
[…]the most analogous music-world ruling states that advertising is “entitled to less indulgence” than should be afforded other commercial uses (like selling CDs featuring a portion of an existing work). So that puts the Beastie Boys on much firmer ground. However, there is another case in which a popular photograph was parodied to advertise a movie, and this was ultimately deemed fair.
Because fair use law allows judges a degree of latitude in making case-by-case determinations, we’re not inclined to venture an opinion on how a judge might ultimately rule. Still, fair use is only part of the equation because…
4. The Beastie Boys’ counterclaims aren’t just about copyright infringement.
Remember, in addition to capitalizing upon the Beastie Boys’ composition, the GoldieBlox ad made use of the Beastie Boys’ name, which opens up additional grounds for counterclaims. The Beasties also accuse Goldieblox of trademark infringement, false endorsement, unfair competition, and misappropriation of publicity rights, based in part on the possibility of consumers being misled to believe Goldieblox’s ad and products had the support or endorsement of the band.
Notably, the suit asks for actual damages, not statutory damages. The band argues that they “have suffered injury to their business, good will and property” but that specific amounts can’t be assessed without a court ordered accounting of how GoldieBlox has profited from the allegedly unlawful acts.
5. Evaluating whether you think a particular use might be deemed fair use under the law is not the same as evaluating whether it is ethical. Both conversations matter to artists.
Even as its boundaries aren’t always well understood, fair use is an important component of US copyright law, one that musicians and other creators themselves frequently utilize. It helps enable the creation of new art, and often allows for important critical perspectives to be advanced.
But there are also moral and ethical dimensions that operate alongside legal considerations. Granted, by definition, fair use sometimes include uses that the original copyright holder might not approve of. But from an ethical perspective, it seems right to consider whether the dying wishes of an artist/activist regarding the use of his work in advertising ought to be respected—particularly for a company concerned with the social empowerment of young women. GoldieBlox’s Sterling claims she had no idea about the Beasties stance on ads, which strikes us as a dubious claim. But we’re not the ones making the calls here.
It’s also not suprising that many artists take offense at perceived or actual dismissals of their concerns over how their work (or brand) is used. The legal debates are fascinating, but they should not overshadow important ethical and moral considerations. In fact, we may not even get an answer to questions about legality, because….
6. It’s still totally possible that this case will be settled out of court.
Many fair use controversies are settled privately, either to avoid the possibility of setting unfavorable precedent or to avoid lengthy and expensive litigation. This one, however may see courtroom action. GoldieBlox has enlisted the services of attorney Daralyn Durie, who represented Google in a recent fair use lawsuit regarding the scanning of books for the purposes of making available excerpts. And the Beastie Boys certainly haven’t backed down in an unrelated copyright infringement case against Monster Energy Drink. Going further, the Hollywood Reporter notes that Universal Music might be eyeing a countersuit as well, based on the fact that GoldieBlox made a whole string of ad videos (now offline) using other artists’ work, and with no clear parodic nature.
We’ll be watching closely to see what happens next.
Photo: Phil Andelman