Gotta fight for your right...
November 23, 2013 1:23 PM   Subscribe

Toy-startup GoldieBlox (previously) had already proven their marketing savvy - then their new commercial went viral, and might even earn them an on-air spot during the Superbowl. But now they've got a lawsuit on their hands - brought by the Beastie Boys.

The commercial was inspired by OK Go's massive Rube Goldberg music video, and was in fact art directed by the same creative engineer, Brett Doar.

The idea of the soundtrack came to the team as a natural fit, and they are set to defend themselves against the notoriously anti-advertisement plaintiffs by countersuing for declarative judgement, with the motivation that their version is "parody and criticism of the original song."
posted by progosk (204 comments total) 11 users marked this as a favorite
 
Please please please tell me that this is The Beastie Boy's intentionally invoking the Streisand Effect in order to bring more publicity to the ad.
posted by sparklemotion at 1:28 PM on November 23, 2013 [7 favorites]


Or, then again, since this is a declaratory judgment it could just be a cynical move on the part of Goldieblox to get sympathy, which would make me sad.
posted by sparklemotion at 1:29 PM on November 23, 2013


I have no clue how Goldieblox and the ad team thought they'd get away with this. The lyrics are criticism, but the music is not. If this were on an album, it would be one thing, but an ad? Even for a company that's doing cool things? No.
posted by incessant at 1:35 PM on November 23, 2013 [23 favorites]


Incessant, didn't Weird Al get away with all his parody songs despite his use of the exact music for each?
posted by These Birds of a Feather at 1:39 PM on November 23, 2013 [3 favorites]


"GoldieBlox created its parody video with specific goals to make fun of the Beastie Boys song"

I'm just a country chicken, but to me it seems that GoldieBlox created this video with the specific goal of advertising their products. Fair use is a notoriously slippery concept in US law; can anyone with expertise comment on how commercial intent affects the parody argument?
posted by Nelson at 1:40 PM on November 23, 2013 [10 favorites]


They shoulda just asked the Beastie Boys nicely. They're not that beastly. Am sure the remaining boys are as embarrassed by their lyrics back then as they should be and would respect a reappropriation with their blessing for well received "yay girlz!" purposes.
posted by Caskeum at 1:43 PM on November 23, 2013 [3 favorites]


Probably worth bringing forward: The Beasties sued Monster Energy Drinks for doing a very similar thing: Applying Beasties material to their own promotions. Monster's side is not doing well in court.

GoldieBlox should have gone elsewhere for the soundtrack; if they're smart right now they'd best try to settle with the Beasties and replace the audio with something they can use fully legally; a protracted intellectual property lawsuit for knowingly using somebody else's music is going to be a stupid thing to sacrifice a company for.

Copyright cases tend to make everybody -- defendant, plaintiff, and a lot of bystanders -- into assholes. It would be good if GoldieBlox didn't go down that road.
posted by ardgedee at 1:43 PM on November 23, 2013 [5 favorites]


The Beastie Boys should be lining up to thank them for redeeming that godawful song of theirs.

(I like the Beastie Boys, and even enjoy the tune/rhythm/non-lyrical aspects of "Girls". But the lyrics are misogynist bullshit they should be ashamed of.)
posted by Sara C. at 1:48 PM on November 23, 2013 [12 favorites]


"[...] proven [...]"

That's a revealing WP article. In hindsight her experiences up to this point read like a roadmap to make this mistake.
posted by tychotesla at 1:49 PM on November 23, 2013


didn't Weird Al get away with all his parody songs despite his use of the exact music for each?

Weird Al always asks for permission because he's a nice guy, but legally he's not required to.
posted by straight at 1:50 PM on November 23, 2013 [3 favorites]


> ...didn't Weird Al get away with all his parody songs despite his use of the exact music for each?

For a long time, Weird Al would ask the artists for explicit approval before releasing parodies of their material. IIRC, for a while, it was the law (in the sense that precedent sets law; I can't find which precedents, though). Now he does it as a courtesy, and will still withhold parodies he can't get approvals for.

Apropos, I found this on Ask A Music Lawyer (dot com): "While it's true that creating a musical parody may not require permission from the copyright holder of the original song, to create a true parody you must be changing the lyrics for the purpose of commenting on the original work... you must not be using the "parodied" song simply because it has a catchy melody and the right number of syllables in the chorus." [emphasis mine]
posted by ardgedee at 1:53 PM on November 23, 2013 [3 favorites]


I don't know shit about shit, but my guess is that the Beastie Boys don't want to see a whole pack of less cool and progressive-seeming advertisers sinking their teeth into that back catalog.
posted by SharkParty at 2:00 PM on November 23, 2013 [17 favorites]


I can't quite articulate why I don't like the content of the ad.. It seems to be saying:

"Look at these girls being clever and creative with these non-gender-specific household objects. Do you want the same for your daughters? Just buy our gender-specific toys!"

Maybe Goldieblox are helpful in teaching our daughters that they can be builders and makers and engineers and scientists, but their own advertisement seems to show girls doing just fine without relying gender-specific toys.
posted by rajbot at 2:10 PM on November 23, 2013 [13 favorites]


It seems like putting "Beastie Boys" in the title of the video is a little bit much.
posted by papayaninja at 2:10 PM on November 23, 2013 [2 favorites]


I find the whole concept of protecting one's "brand" to be kinda stupid, though companies like GoldieBlox make it a necessary evil. Reappropriating cultural touchstones to sell toys is crass (and I'm nearly one of those "intellectual property is total bullshit" types), and claiming that this ad was done to parody a song and not merely to sell toys is definitely where that cynicism is rooted. Couldn't they just have "parodied" Fugazi's Merchandise?
posted by antonymous at 2:15 PM on November 23, 2013 [1 favorite]


At the end of the day Goldiebox is taking the work of a group of artists and using it to sell crap. Their marketing bullshit about "caring" and "nurturing" blah blah blah is all just patter to separate you from your money. See also Ben & Jerry's, Burt's Bees and Baby Einstein.
posted by humanfont at 2:17 PM on November 23, 2013 [13 favorites]


On my facebook someone who felt strongly about this add linked to it saying:
"If 3 Little Girls Did This To My House, I'd Do Everything I Could To

...Get Them Full Rides To Stanford
"
posted by Blasdelb at 2:18 PM on November 23, 2013


can anyone with expertise comment on how commercial intent affects the parody argument?

A commercial work can qualify as parody. The commercial nature of the work is one of the factors in a fair use determination, but it's not a dealbreaker.

I have no clue how Goldieblox and the ad team thought they'd get away with this. The lyrics are criticism, but the music is not.

Well this analysis starts with: 1) is there an infringement of a work? If yes, then 2) is there a parody argument to be made, to mitigate the infringing use? So the infringement of the music is probably agreed upon by both parties from the outset, and the parody/fair use stuff proceeds from there.

I actually think there's a really strong argument to be made that this is a parody. There's a statement being made in the original ("Girls - to do the dishes, to do the laundry") that is being humorously commented upon and criticized ("Girls - to build the spaceship, to code the new app"). It's not ambiguous or anything.
posted by naju at 2:18 PM on November 23, 2013 [12 favorites]


There are companies like Greenlight whose expertise is in making sure these kinds of things don't happen, because "It's easier to for forgiveness than permission" should not be a marketing strategy.
posted by Calzephyr at 2:25 PM on November 23, 2013


The legal matters which pertain to this type of thing have been described by the 2 Live Crew case which went before the SCOTUS a while back.

Wikipedia has a summary of that case and decision.
posted by hippybear at 2:26 PM on November 23, 2013 [2 favorites]


I don't know, actually, I think the idea of changing the lyrics of a misogynist song about how women are good for nothing but servitude into an empowering song about how girls are just as smart and creative as boys is a pretty good argument for parody in this case. The rewritten "Girls" lyrics clearly parody the original song.

The question is whether this parody version's use in a commercial renders the whole parody argument moot. Is parody for purposes of advertisement protected in the same way that a Weird Al song would be?
posted by Sara C. at 2:29 PM on November 23, 2013 [1 favorite]


Much as I love the ad's message, I kind of hate the ad. Partly because it doesn't actually display the product, partly because Upworthy's packaging of it implies that this is a found-object "look what these girls did!" when it's so obviously the creation of marketing people.

I might buy some Goldieblox for my daughter anyway (their website, which shows actual projects you can make with Goldieblox, is much better), but I won't shed a tear if the marketing company gets sued.
posted by ThatFuzzyBastard at 2:29 PM on November 23, 2013 [5 favorites]


I thought the original song was supposed to be satire?
posted by discopolo at 2:32 PM on November 23, 2013 [5 favorites]


Blasdelb, that was actually the Upworthy title for the ad. Irked me too, as a woman who, when a girl, grew up hammering nails into boards I would saw with, y'know, an actual handsaw, and who designed, drafted, and built her own model space station, to scale, at age 9. It was disqualified from the science fair because everyone thought my father did it.

It's one mere anecdote among thousands of millions of billions in the history of patriarchy, which is why the ad and its viral titles are irksome. "Look! Girls can be engineers if you give them pink pre-fabricated engineering stuff!" Gaaaaaaaaaaah.
posted by fraula at 2:33 PM on November 23, 2013 [15 favorites]


It's not like a work can't have multiple purposes. Advertising is not all the same. Sometimes advertising is also social comment, sometimes it's also entertainment, etc. I don't usually like to defend advertising, but I guess in this context I'm thinking of it more like--a lot of our age's most creative people are going to end up working in some kind of marketing or commercial design capacity because even artists like eating. Saying that companies can't do parody is something where I don't really care if the company itself is limited that way, but I'd rather the people actually making the advertising felt like it was absolutely their place to make social commentary and to act as positive forces for change. Because otherwise they're apt to be acting as forces in a completely different direction. Advertising does really matter to things like breaking down gender barriers, even above and beyond this sort of product.
posted by Sequence at 2:33 PM on November 23, 2013 [2 favorites]


Damn, forgot to add: via (MeFi's own) waxy.
posted by progosk at 2:35 PM on November 23, 2013 [2 favorites]


Adam Yauch's will specifically prohibited the use of his music in advertisements after his death.
I still think this is fair use though.
posted by metaname at 2:49 PM on November 23, 2013 [2 favorites]


Can't they attack a stereotype (girls want / are only good for what men think they want), as epitomised by a song, by parodying that song and at the same time, offering an alternative? Even a commercial alternative?

I asked her out, she said, "No way!"
I shoulda probably guessed her gay

Girls - to do the dishes
Girls - to clean up my room
Girls - to do the laundry

posted by obiwanwasabi at 2:50 PM on November 23, 2013


With almost no effort they could rewrite this to a cover of "shout". I doubt the Isley brothers would care. Everyone else uses it.

They could even go into the "waaaaait a minute" breakdown during a pivotal section of the contraption! And then come out of THAT with a parody of "whole lotta love". Man this would rule!!
posted by SharkParty at 2:54 PM on November 23, 2013 [3 favorites]


"Look! Girls can be engineers if you give them pink pre-fabricated engineering stuff!"

Yeah. They have the little girls complain that everything bought for them is pink and looks the same, that instead they want range and variety... and the product is a fairly ordinary-looking construction toy, except in pink and lilac, and therefore for girls. It's odd.
posted by metaBugs at 3:04 PM on November 23, 2013 [13 favorites]


Slight correction to my FPP, having read a little closer: the Goldieblox declaratory judgement lawsuit is actually pre-emptive, and Beastie Boys' lawyers have only threatened, not taken, legal action so far.
posted by progosk at 3:09 PM on November 23, 2013 [3 favorites]


It's a cute ad, and fun to watch.

But - using an artist's work without the artist's permission is ... stupid.. The parody argument is just clutching at straws; their intent wasn't to make a social statement, it's to sell some toys.

The best ads are entertaining, often make statements, and get us thinking... while they're also selling. But that doesn't make it fair use.

Also, if I understand the legalities, if you hold a copyright, you HAVE to defend it vigorously or risk losing it, which means attacking every unauthorized use.
posted by Artful Codger at 3:10 PM on November 23, 2013 [1 favorite]


Is there a lawsuit? Brought by The Beastie Boys? The Hollywood Reporter story says Goldieblox filed suit demanding a declaratory judgment supporting fair use. Reason being, apparently, "the Beastie Boys have now threatened Goldieblox with copyright infringement," in which case I hope that (assuming that quote is verbatim from the Goldieblox suit) the Goldieblox lawyers have a better grasp of the law than their writing would suggest.
posted by Mothlight at 3:11 PM on November 23, 2013 [1 favorite]


Yuck. They’re selling shit, not doing a PSA.

"I’m going to steal your work and use it against you’re will to sell my shit and make a profit" does not suddenly become OK because you agree with the political posturing they’re selling. I agree with the message but I think the commercial is underhanded and slimy.

I’m sometimes stunned at how much people buy into the con.

"Look at these girls being clever and creative with these non-gender-specific household objects. Do you want the same for your daughters? Just buy our gender-specific toys!"

Yeah, this strikes me like a big, gold, diamond studded "Jesus" necklace.
posted by bongo_x at 3:15 PM on November 23, 2013 [10 favorites]


I feel more strongly about the Beasties' work being protected than some piece of shit pink toy.
posted by bleep at 3:15 PM on November 23, 2013 [9 favorites]


Artful Codger: "Also, if I understand the legalities, if you hold a copyright, you HAVE to defend it vigorously or risk losing it, which means attacking every unauthorized use."

You're confusing copyright with trademark, it's the only latter that can be forfeited through lack of defense.
posted by Proofs and Refutations at 3:17 PM on November 23, 2013 [4 favorites]


Ah. Thanks.
posted by Artful Codger at 3:19 PM on November 23, 2013


Is there a lawsuit?

No, Mothlight, my mistake up top - there's no Beastie Boys lawsuit (yet), only the pre-emptive one brought by GoldieBlox, which alleges copyright infringement threats from the other side.
posted by progosk at 3:20 PM on November 23, 2013


I'm all for empowerment and repurposing of the song, but I'm kind of on the side of artists having control of who uses their material for adverts.
posted by arcticseal at 3:22 PM on November 23, 2013 [4 favorites]


They have the little girls complain that everything bought for them is pink and looks the same, that instead they want range and variety... and the product is a fairly ordinary-looking construction toy, except in pink and lilac, and therefore for girls. It's odd.

My thoughts exactly. The whole jingle is Pink toys? Princesses? No thanks! and then the reveal at the end is... a pink hunk of plastic. With a white, blonde, princess-like cartoon mascot.

It kinda seems like they're cynically co-opting a popular activist sentiment to sell a product, with the hope that the cuteness and catchiness of the delivery will outweigh the contradiction of the message.

Also, the toy looks pretty crummy. It's a board with holes in it, some spools, some dowels, and some ribbon. The shittiest set of TinkerToys imaginable.
posted by Sys Rq at 3:23 PM on November 23, 2013 [5 favorites]


Truthfully, I only liked the BB because Kathleen Hanna married one, so I figured they must be cool. Maybe not.
posted by whatgorilla at 3:26 PM on November 23, 2013


fraula: "Look! Girls can be engineers if you give them pink pre-fabricated engineering stuff!"

Few people hate the "make it pink, now it's for girls" thing more than me, but I really don't think that's what GoldieBlox is doing here. What they're doing is taking the fact that girls like narrative play, and using that narrative play to encourage them to build stuff. Each kit comes with a book that tells a story of Goldie and her friends, along with instructions to build toys that teach things like wheels and axels, gears, etc. Then, once the kids are comfortable with how the components work, they can use them to make all sorts of things.

(Similarly, Lego created Lego Friends, something I used to be a bit eyerolly about until this thread on the blue convinced me otherwise. Many toys we think of as ungendered are in fact toys designed for the way boys play.)

Women are deeply under-represented in STEM fields the world over. One of the statistics in the video on the Superbowl page is that 11% of American engineers are women. This toy is trying to encourage girls to get into building/engineering/problem-solving, but doing so in a way that's also friendly to parents/grandparents who want to buy their girls something pastel and pretty. I think they're actually very clever in the way they're marketing: they're not saying princesses are bad, but that you can be both a princess and an engineer.

I saw this ad the other day and I thought it was wonderful in both execution and message. And it does have a bunch of GoldieBlox toys in it, so I'm not sure why people are saying it doesn't.

Not licensing the music seems like a huge risk, though.
posted by Georgina at 3:28 PM on November 23, 2013 [23 favorites]


(Behind the scenes of the shoot with Raven, Sabrina and Reese, via Underwire.)
posted by progosk at 3:48 PM on November 23, 2013


It had not occurred to me that the folks making the commercial hadn't done something to clear the soundtrack correctly. Either permission or getting a mechanic license (is that the term) to have someone record the backing track and then drop their own parody lyrics on top of that.
posted by rmd1023 at 3:48 PM on November 23, 2013


"And we would add key details in Post: Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune, “Girls” would add narrative drive as we assembled the piece..."

The blog entry by the production company makes it sound as though the idea for the soundtrack actually only came during the edit - as is often the case. (Beau Lewis is company founder Debbie Sterling's husband, and former film producer, so it's pretty sure he knew what they might be getting themselves into.)
posted by progosk at 4:11 PM on November 23, 2013


Sidebarring and sidebar: I bought and will continue to buy the Goldieblox because it's easy. Shopping for non-gendered toys limits you to mostly open ended basics (often awesome) but takes away a lot of really neat stuff that you have to be careful buying. Jigsaw puzzles are gendered! I can get animals, but the moment people appear - all the pirate ship jigsaws are boys only, all the horses ones feature girls only, and you end up stuck with Playmobil and crayons. Goldieblox is new on the pink aisle. The contents are on par quality-wise with similar building kits at that price.

Goldieblox is not really meant for my daughter, who has her own spanner and nuts set, cars and lego. It's meant for her cousin who is being raised as super-feminine by very gender-rigid parents and who has no toys that are not pink. I can buy Goldieblox for her Christmas present and it'll be a little weird, but it won't be given automatically to her little brother.

First person to build a transformer-style girl robot toy will get my money too. I want robots with cute faces and girls' names that come in pink and yellow and don't have metal bikinis!
posted by viggorlijah at 4:31 PM on November 23, 2013 [14 favorites]


Yeah, I like the idea behind the product (although I couldn't possibly be less qualified as to whether it's pandering/hypocritical), but using someone else's work without permission to sell toys is a shitty thing to do. No qualifications needed.

I wouldn't be surprised if this lawsuit wasn't part of the marketing plan all along. Maybe I'm being too cynical/paranoid, but it would be pretty brilliant. I've never heard of the toy, and it seems like I never would have without the easily-framed 'Kickstarter Project Strikes Back Against Mysoginist Millionaire Celebrities' story.
posted by graphnerd at 4:32 PM on November 23, 2013 [2 favorites]


Mechanical licence.

...I'm not certain that's what would be required, but, hey, I'm the fool who confused trademark with copyright.

Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune...

That's it - publicly slag the artist when appropriating their work.
posted by Artful Codger at 4:35 PM on November 23, 2013


I don't know if calling the lyrics to Beastie Boys' Girls misogynistic is really slandering the work, it's more stating a fact.

I mean, I still think that they should have asked permission before using it in a commercial, but c'mon. The original song was pretty vile.
posted by dinty_moore at 4:42 PM on November 23, 2013 [2 favorites]


"I'm using your song without your permission, and while doing so, I will publicly criticize it".

What could go wrong?
posted by Artful Codger at 5:07 PM on November 23, 2013


Seems to me that rather than being a copy of Beastie Boys, both the OKGo and GoldieBlox videos owe a lot more to Fischli & Weiss's The Way Things Go. I mean like mechanisms they used were copied exactly. And then of course they copied freely from Pythagoras Switch.
posted by charlie don't surf at 5:12 PM on November 23, 2013 [1 favorite]


It is important to state that many of Weird Al's songs are not really parodies in the legal sense, since songs like Couch Potato are just funny songs set to popular music. They are not explicitly commenting on the original work itself. Conversely, Weird Al's This Song is Just Six Words Long would probably count as parody since the reworked lyrics are about writing a very repetitive song.

Maybe it would be cool of the Beasties to explicitly give permission in this case but I am not sure how GoldieBlox think they have a leg to stand on. They are using the tune for commercial purposes and their parody theory seems pretty weak. Best of luck to them though.

For the record, I always thought that Girls was a pretty funny self-aware song in which the singer is revealed to be a total loser due to his general immaturity. But maybe I am giving the 'Boys too much credit.
posted by AndrewStephens at 5:16 PM on November 23, 2013 [3 favorites]


"I'm using your song without your permission, and while doing so, I will publicly criticize it".

What could go wrong?


It's actually pretty smart, because it's some solid evidence that the song was used for critical comment/parody purposes rather than being an homage or knock-off. It's good they were upfront about this.
posted by naju at 5:17 PM on November 23, 2013 [3 favorites]


For the record, I always thought that Girls was a pretty funny self-aware song in which the singer is revealed to be a total loser due to his general immaturity. But maybe I am giving the 'Boys too much credit.

Hypothetically, could this have an effect on a legal argument around whether or not it could be considered parody? Would something that was intended to comment on a work, but entirely misconstrued its message still count?
posted by graphnerd at 5:23 PM on November 23, 2013


Charlie don't surf, I'd be interested to hear which specific mechanisms of "The Way Things Go" and pythagoras switch you feel were copied directly by this and the OK Go piece.
posted by kingv at 5:44 PM on November 23, 2013


Would something that was intended to comment on a work, but entirely misconstrued its message still count?
I have no idea if "attempted parody" is a defence. I can certainly see the point of people who take Girls to be misogynistic (although I disagree). Perhaps that is why the Beasty Boys are upset, they hate the implication that the original was against what the ad is portraying. Or maybe they just don't like a company appropriating their work for profit.
posted by AndrewStephens at 5:56 PM on November 23, 2013 [1 favorite]


"At the end of the day Goldiebox is taking the work of a group of artists and using it to sell crap. Their marketing bullshit about "caring" and "nurturing" blah blah blah is all just patter to separate you from your money. See also Ben & Jerry's, Burt's Bees and Baby Einstein."

How's life in your yurt?

""I’m going to steal your work and use it against you’re will to sell my shit and make a profit" does not suddenly become OK because you agree with the political posturing they’re selling. I agree with the message but I think the commercial is underhanded and slimy. "

Oh, man, you're one of the "It's stealing!" folks, huh?

Didn't catch 2 Live Crew stuff upthread? You can, in fact, "steal" to sell if you're actually parodying the underlying work. Which this seems to pretty clearly do.

Funny how the anti-ad brigade will stumble all over themselves to gut fair use if it sells something.
posted by klangklangston at 6:08 PM on November 23, 2013 [2 favorites]


kingv, as far as I know, the concept of one continuous take of an elaborate rube goldberg mechanism spread out over a wide space, first appeared in Fischil & Weiss's film. I saw several specific mechanisms that immediately reminded me of the F&W film, for example the spinning baby doll in the cradle suspended from a feather boa, is very similar to the spinning garbage bags at the very start of the F&W video. There's a sequence of stools tipping over in the commercial that is very similar to a row of chairs tipping over in F&W. The start of the Goldieblox video uses a toy record player pushing a cam that starts a cylinder rolling down a ramp, this mechanism is used over and over in the Pythagoras Switch videos.

BTW I can't seem to get the Vimeo link of The Way Things Go to play past 2 seconds so here is a lower rez Youtube link. I remember seeing this at the MOCA LA in 1987 when it was first released, it was playing on a loop on a TV in a little side gallery. I walked past the TV and caught a glance, and thought, what the hell is that? I sat down and could not stop watching, I sat through the whole film twice.
posted by charlie don't surf at 6:10 PM on November 23, 2013 [1 favorite]


I don't think parody status has anything to do with the original subject matter or whether the parody-maker "really got" the song.

Take for example the Weird Al song "Amish Paradise". It doesn't matter what Coolio thinks is the original intent of "Gangsta's Paradise". "Amish Paradise" is a song about how it's badass to be Amish. Maybe Coolio thought "Gangsta's Paradise" was a Gatsby-esque exploration of the emotional realities of gang members' daily lives in South Central LA. Doesn't matter. "Amish Paradise" is still a parody of the song "Gangsta's Paradise". Coolio can't sue Weird Al because "dude you like totally didn't even get my song at all."

Similarly, whether or not "Girls" is truly misogynistic or just a joke doesn't change whether the Goldieblox take on it is parody.
posted by Sara C. at 6:11 PM on November 23, 2013 [3 favorites]


My best understanding from talking with friends who are lawyers is that copyright is a slippery slope. Someone correct me if I'm off base. The song is clearly being used for profit, even if it has a good message attached to it. If the Beastie Boys or whoever else did not go after the infringement (especially an instance getting so much media attention), then future infringers could point to that in the court of law to support their use of other Beastie Boys material. So, even if the Beastie Boys supported the message being put forth by Goldieblox, they have more of a stake to defend their copyright.
posted by C'est la D.C. at 6:50 PM on November 23, 2013


antonymous: "Couldn't they just have "parodied" Fugazi's Merchandise?"

WE OWE YOU NOTHING!!!

Great now I have to go fire that up. Thanks a lot.

No, seriously, thanks. It's a fucking classic album.
posted by symbioid at 6:54 PM on November 23, 2013 [3 favorites]


If the Beastie Boys or whoever else did not go after the infringement (especially an instance getting so much media attention), then future infringers could point to that in the court of law to support their use of other Beastie Boys material.

As mentioned above, this is a trademark, not a copyright thing. A trademark owner has an affirmative duty to monitor and defend, or the right to enforce the trademark gets weakened and eventually lost. Copyright owners don't have such a duty, though.
posted by naju at 7:11 PM on November 23, 2013 [1 favorite]


"My best understanding from talking with friends who are lawyers is that copyright is a slippery slope. Someone correct me if I'm off base. The song is clearly being used for profit, even if it has a good message attached to it. If the Beastie Boys or whoever else did not go after the infringement (especially an instance getting so much media attention), then future infringers could point to that in the court of law to support their use of other Beastie Boys material."

That's trademark, and has already been mentioned in the thread.
posted by klangklangston at 7:11 PM on November 23, 2013 [1 favorite]


Jinx
posted by klangklangston at 7:15 PM on November 23, 2013 [2 favorites]


Once a derivative work is used for advertising, all fair use arguments go out the window, including parody. Plus, the Beasties themselves have stated that their work is not to ever be used in ads, full stop. Cf. Tom Waits v. Frito-Lay. The law is a slam dunk against the advertisers here.

Plus they should've used Sure Shot.
posted by whuppy at 8:04 PM on November 23, 2013 [4 favorites]


Tom Waits v. Frito-Lay.

The Tom Waits decision was based largely on violation of his rights of publicity. That wouldn't apply here unless you can convince a jury that people could be confused into thinking the Beastie Boys themselves were singing the song in the commercial and thereby endorsing the product. (In that sense it's more like a claim of violation of trademark than one of copyright infringement.)
posted by straight at 8:17 PM on November 23, 2013 [1 favorite]


WAIT. THAT WASN'T THE BEASTIE BOYS???

Can Goldieblox be sued for writing literally the worst song parody I have ever, ever heard?
posted by stoneandstar at 8:18 PM on November 23, 2013 [2 favorites]


Once a derivative work is used for advertising, all fair use arguments go out the window, including parody."

Man, I know that the impulse to just type something based on gut reaction is strong, but you're flat wrong. Coors parodied Energizer in an ad and won the suit.

For actual lawyers talking about this stuff, including the limits of commercial fair use and the current incoherence of judicial decisions, see: Fordham Law Review's The Applicability of the Fair Use Defense To Commercial Advertising: Eliminating Unfounded Limitations.
posted by klangklangston at 8:28 PM on November 23, 2013 [7 favorites]


Whups, that's weird. Try this instead.
posted by klangklangston at 8:29 PM on November 23, 2013




Seems like a parody to me.

But I don't understand the use of pink and lilac in the Goldieblox product. I love the product and would love to buy it for the little boys in my life. But they won't go anywhere near anything that is pink. Wouldn't it be lovely if the toy was marketed to girls but still looked anything but pink? Is this because people will only buy pink things for girls, even if the point is to buy something that isn't pink?
posted by Chaussette and the Pussy Cats at 10:57 PM on November 23, 2013


I think the real issue is that toymakers have completely bought into the idea that if you make two identical toys, and make one primary colors, call it Toy X, and market it to boys, and you make the other pastel colors, call it Toy Y, and market it to girls, you can trick parents into buying double. Or at the very least, as viggorlijah says, you can trick parents who won't buy "boy toys" for their girls into making a purchase they ordinarily wouldn't.
posted by Sara C. at 11:02 PM on November 23, 2013 [1 favorite]


So first they make this pandering ad, then they package it with a deceptive title on Upworthy (a site that always has seemed to be trawling for a few nice sponsored content gigs), then they issue a so-called preemptive declaration that makes casual readers incorrectly think that a popular band is suing this noble, virtuous product? That's quite the unethical, effective marketing strategy.
I simultaneously dislike them and think they're brilliant.
posted by ThatFuzzyBastard at 11:16 PM on November 23, 2013 [7 favorites]


"I'm using your song without your permission, and while doing so, I will publicly criticize it". What could go wrong?

Nothing, if it's a parody, because that's fair use.
posted by obiwanwasabi at 12:26 AM on November 24, 2013 [1 favorite]


I'd appreciate it if someone who sees the advertisement's song as a parody can articulate why. I just listened to the ad's song again and I can't parse that.

I agree that it has always been difficult to parse the Beastie Boys song, but personally, I have always felt like it is parody of guys' responses to being ignored. The last verse reinforces that, because the rest of the song is essentially about a guy who loves girls because "I like the way that they walk - And it's chill to hear them talk." And then Ad-Rock basically tells the story of how he tried to date someone, but she went for Mike D. instead.

The last verse is the one that everyone reads as sexist, because it enumerates the tasks around the house Ad-Rock wants girls to do. But if you put that verse in the context of the song, it sounds like parody as well, of a guy who is whining because he didn't get what he wanted.

Anyway, YMMV, but even if my interpretation is wrong, it doesn't seem that the ad is a parody, rather than a simple narration that young girls can play with toys unfocused on princess life that enable construction and engineering, etc. (the tagline for the product is Toys for Future Engineers). That seems wholly unrelated to the Beastie Boys' song, except the music, the word 'Girls,' and a hypothetical parody relationship between the songs that I cannot parse at all.
posted by miss tea at 4:01 AM on November 24, 2013 [5 favorites]


First to address straight, it may not be the main thrust but there's definitely a right of publicity issue here. The Beasties have been vocal about their music never being used in ads, just as Tom Waits turned down the chance to voice Chester Cheetah.

Second to address Klangklangston, I prefer "oversimplifying" to "flat wrong" but to-MAY-to to-MAH-to. Prior to to 1976 Act, my statement was correct: Commercial use was a flat-out bar to Fair Use arguments. Now you've got to balance the four factors. So when a Coors commercial is parodying an Eveready commercial, you can squeak through on the most important "the effect of the use upon the potential market for or value of the copyrighted work" factor.

So yes, the four factors have to be weighed and balanced, but no there's no way these advertisers here even pass a smell test.
posted by whuppy at 6:23 AM on November 24, 2013 [2 favorites]


The Tom Waits decision was based largely on violation of his rights of publicity. That wouldn't apply here unless you can convince a jury that people could be confused into thinking the Beastie Boys themselves were singing the song in the commercial and thereby endorsing the product.

How's this for a case: The video on YouTube is titled GoldieBlox, Rube Goldberg, & Beastie Boys "Princess Machine" (a concert for little girls). It seems reasonable to infer from the title that the Beastie Boys were somehow involved, and that they endorse the product.
posted by Sys Rq at 7:16 AM on November 24, 2013 [3 favorites]


Few people hate the "make it pink, now it's for girls" thing more than me, but I really don't think that's what GoldieBlox is doing here. What they're doing is taking the fact that girls like narrative play, and using that narrative play to encourage them to build stuff. Each kit comes with a book that tells a story of Goldie and her friends, along with instructions to build toys that teach things like wheels and axels, gears, etc. Then, once the kids are comfortable with how the components work, they can use them to make all sorts of things.

(Similarly, Lego created Lego Friends, something I used to be a bit eyerolly about until this thread on the blue convinced me otherwise. Many toys we think of as ungendered are in fact toys designed for the way boys play.)


I have been really, really struggling with my feelings about the GoldieBlox commercial and its reception, mostly because of the way the commercial reflexively dismisses doll play as vapid and awful, which seems to me to be doing the same misogynistic stuff as the entire rest of the toy industry. But then I'm probably one of the greatest defenders of Lego Friends, and the release of this commercial has seen resurfacing of all sorts of comments along the lines of "See? Lego Friends is TERRIBLE! Just like Polly Pocket! They make TANNING SALONS!"

Which has never been true and still isn't true. The Friends' line recent releases have been more and more mixed in terms of block color, have focused more on animal-themed releases than beauty-themed releases, and have included little boy minidolls, too. And I still don't see what's wrong with imaginative narrative play like Polly Pocket.

Of course, GoldieBlox is largely doing the exact same thing--inserting a narrative and pretty colors into a basic building toy. As a toy, I honestly think it's a bit young and simplistic and the narratives sound pretty awful (certainly not the level of quality of, say, the American Girl historical lines--btw if you know an AG obsessed ten year old, and want to encourage SCIENCE![tm] get her this). But then, I never really liked tinker-toy type building toys and preferred toys with a more narrative spin.
posted by PhoBWanKenobi at 8:00 AM on November 24, 2013 [3 favorites]


On the other have my daughter has spent her morning building a Rube Goldberg contraption out of her existing toys after seeing the commercial and has not requested the toy advertised so I'm going with fair educational purpose as a reasonable defense.
posted by humanfont at 9:47 AM on November 24, 2013 [7 favorites]


It's kind of hilarious that we're talking about the Beastie Boys here, no?
posted by STFUDonnie at 9:52 AM on November 24, 2013 [1 favorite]


I thought the original song was supposed to be satire?

I don't think so. They apologized for the lyrics of their first album on a number of occasions.

It's kind of hilarious that we're talking about the Beastie Boys here, no?

I'm not sure this and sampling are really comparable. Sampling and "using the entire composition and lyrics with some lyrical changes for parody in order to sell a product" are not the same thing. The Beasties have been challenged on sampling and went some way in establishing this with Newton v Diamond, where it was established that the 6-second sound they sampled was not really considered a copyright infringement of the original composition. And they also had obtained the rights to sample the recording prior to doing it.

Also, this is is not "brought by the Beastie Boys". Goldieblox apparently pre-emptively sued the Beastie Boys, in an effort to have this declared fair use after the Beastie Boys' lawyers sent them a letter.

I dunno. I know the Beasties have distanced themselves from this song and while I like what was done to re-purpose it in theory, I think that the Beasties would have been totally OK with this had it not been to sell a product they are not affiliated with. Asking them to give the OK is essentially asking them to endorse this product. If this were just some cover song/parody thing or something I suspect nothing would have been done, not even a letter from their lawyers.
posted by Hoopo at 12:26 PM on November 24, 2013 [4 favorites]


Truthfully, I only liked the BB because Kathleen Hanna married one, so I figured they must be cool. Maybe not.

Sounds like you really thought this one through and came to conclusion carefully from a place of knowledge
posted by Hoopo at 1:20 PM on November 24, 2013 [3 favorites]


"Prior to to 1976 Act, my statement was correct: Commercial use was a flat-out bar to Fair Use arguments. Now you've got to balance the four factors."

No. Prior to the 1976 act, commercial use was (and still to some extent remains) presumptive evidence against fair use, putting the burden of proof upon the defendant. It is not conclusive evidence against fair use. But as the paper I linked points out, it is sometimes treated as such.
posted by klangklangston at 1:53 PM on November 24, 2013


klang, would using the Beastie Boys' name in the title of the video change the judge's read of fair use? Presumably GoldieBlox did not license the Beastie Boys name if they couldn't be bothered to license the song, and that would seem like slam-dunk infringement of trademark if not copyright.
posted by Existential Dread at 6:12 PM on November 24, 2013


-- I thought the original song was supposed to be satire?
-- I don't think so. They apologized for the lyrics of their first album on a number of occasions.


I think sometimes you just apologize for something and hope it blows over. To me, the lyrics of "Girls" speak for themselves as a satire of guys' sour-grapes reactions to failed love attempts, as other people have pointed out upthread.
posted by scrowdid at 7:25 PM on November 24, 2013 [2 favorites]


"klang, would using the Beastie Boys' name in the title of the video change the judge's read of fair use? Presumably GoldieBlox did not license the Beastie Boys name if they couldn't be bothered to license the song, and that would seem like slam-dunk infringement of trademark if not copyright."

Not a lawyer, not a judge, so talking out my ass: That seems like they were implying endorsement, which is publicity rights, which could get them in trouble. Maybe someone with actual expertise will weigh in.
posted by klangklangston at 7:35 PM on November 24, 2013


Orrick.com have some really talented lawyers and wide range of experience Lisa Simpson (yep) has represented Facebook against the Winklevoss twins, and MP3.com against record companies, for example. She was even on the famous Bratz® case. Fantastic resumé on a lawyer apparently hired by a scrappy kickstarted startup to file a pre-emptive suit against Beastie Boys in the NDCA, while the Beastie Boys are actually in New York and would fare much better in court over there... Smells sort of funky. This is the team that signed the declaratory judgment; Anette, Diana Bryce, Beth.
posted by dabitch at 8:18 PM on November 24, 2013 [1 favorite]


To me, the lyrics of "Girls" speak for themselves as a satire of guys' sour-grapes reactions to failed love attempts, as other people have pointed out upthread.

I really don't think the Beasties' body of work up to and including Paul's Boutique suggests satire. It might have started that way, but they admit they became what they were making fun of while cultivating that image. It's only in retrospect it looks like satire, because Check Your Head and everything that followed were such a huge change in their image, attitude, and values. I love the first 2 albums but they definitely say a lot of stupid immature things. They have admitted to the lyrics being dumb, sexist, and that they didn't like to perform the lyrics from that era anymore (or they change them). "Fight For Your Right To Party" was a satire that was misunderstood, but it was a satire of hair metal. The sexist stuff was sexist and regrettable and they own that.
posted by Hoopo at 9:11 PM on November 24, 2013 [1 favorite]


The Trouble with GoldieBlox lists a bunch of alternative engering-inspirering toys that aren't pink for anyone who is interested.
posted by dabitch at 11:44 PM on November 24, 2013 [3 favorites]


With almost no effort they could rewrite this to a cover of "shout". I doubt the Isley brothers would care. Everyone else uses it.

They may have already done just that.

I'd appreciate it if someone who sees the advertisement's song as a parody can articulate why.

The song is men wishing girls would just suck their dicks and do the dishes already, and getting pouty that all these obvious lesbians keep brushing them off. If you don't agree that it's a parody when you:

- start with a song about wishing girls would just do what men expect them to do already, because stupid dykes make me some fuckin' eggs nah don't mind me I'm just sulking so it's cool;

- take that song's melody and 'girls!' refrain, then

- give the song new lyrics that empower girls, present girls' perspectives, and

- add a film clip showing girls doing cool non-dick-sucking / dish-washing things

then I don't know what else to say to convince you.
posted by obiwanwasabi at 12:19 AM on November 25, 2013 [3 favorites]


"There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys." Huffpo
posted by dabitch at 12:34 AM on November 25, 2013 [2 favorites]


As I said, obiwanwasabi, I am open to alternative interpretations of the song:

. . . even if my interpretation is wrong, it doesn't seem that the ad is a parody, rather than a simple narration that young girls can play with toys unfocused on princess life that enable construction and engineering, etc. (the tagline for the product is Toys for Future Engineers). That seems wholly unrelated to the Beastie Boys' song, except the music, the word 'Girls,' and a hypothetical parody relationship between the songs that I cannot parse at all.

But my primary issue is with the claim that what the ad does is a "parody." I just went back and reviewed the Campbell v. Acuff-Rose case and it clearly states that to be a parody something must be a "critical bearing on the substance or style of the original composition . . ."

Even if, as you contend, the original Beastie Boys song is ". . . men wishing girls would just suck their dicks and do the dishes already, and getting pouty that all these obvious lesbians keep brushing them off[]" then the ad should relate to the original conclusion you've articulated, which would be related to dick-sucking and lesbianism, accompanied by housekeeping.

How is that related to Toys for Future Engineers for girls? Any toy for girls that isn't't stereotypical may reuse 'Girls', because is deemed sexist?
posted by miss tea at 3:49 AM on November 25, 2013 [1 favorite]


Too early. Sorry for the typos.
posted by miss tea at 6:41 AM on November 25, 2013


As I said, obiwanwasabi, I am open to alternative interpretations of the song:

But again, artist's intent doesn't really apply here. If you could get around the fair use parody thing by saying "ooooh, but no, see, you totally misunderstood what I was trying to accomplish here...", that would render parody moot. Everyone who came across a parody they weren't happy with would just claim that the parody doesn't "get" the original work.
posted by Sara C. at 8:44 AM on November 25, 2013 [1 favorite]


Hello again, klangklangston! I just wanted to point out that my statement of pre-1976 Act Fair Use reasoning was taken from section I.A (page 6) of the paper you cited: "Prior to the passage of the Copyright Act, courts limited findings of fair use to non-commercial uses, reasoning that commercial uses did not advance society's interest in access to useful information."

You are correct that commercial use is not now an absolute bar to a finding of fair use (and yes, my original post should have used a weasel word like "effectively" or "anybody with a half-decent and not completely sleazy legal counsel who understands the mountain of precedent"), but if you think this one's not a slam dunk against GoldieBlox then we'll just have to agree to disagree.
posted by whuppy at 8:48 AM on November 25, 2013 [2 favorites]


Wait, am I reading this right? These guys are going out of their way to get into a legal entanglement so they can milk sympathy for being in a legal entanglement?

If so fuck them forever.
posted by Artw at 8:50 AM on November 25, 2013 [8 favorites]


That seems to be their marketing strategy. They have a reason to want a precedent on this sort of thing. Their next ad is a horde of girls singing along to "We are the champions". No word yet if anyone contacted Queen for the sync licensing to that (which I'm sure they'd get, unlike Beastie Boys, Queen happily licenses all the time). The queen one being a :90 it may be a better fit for that Super Bowl slot they're hoping to win too.
posted by dabitch at 9:02 AM on November 25, 2013 [1 favorite]


Why can't they... Make cool toys and just advertise them without ripping people off or starting weird fights? That would seem a better fit for their stated goal.
posted by Artw at 9:21 AM on November 25, 2013 [2 favorites]


The Beaste Boys respond in an open letter:
“When we tried to simply ask how and why our song ‘Girls’ had been used in your ad without our permission, YOU sued US,”
That they targeted that super rare thing--a group of male celebrities that have been very outspoken feminists--to get publicity for a product that they're selling, a product that as discussed upthread is itself problematic, and used a song from a band that has had a very public stand against their music being used in advertising, consistent across the 33 years they've been performing...

Just. Man. I have a hard time seeing any other side to this, than some jerk startup acting like thugs to get attention.
posted by danny the boy at 9:58 AM on November 25, 2013 [14 favorites]


I agree with you, Sara C., to the extent that intention in the underlying song is not dispositive. But to show parody by the Toys for Future Engineers, the parody must be of the underlying song, and I don't seen any articulate, specific parody in their song. The idea that "sexism" in a song allows any use of the tune against sexism is overly vague, since the legal standard requires a showing that it contains "critical bearing on the substance or style of the original composition . . ."

To me, the songs' lyrics are sufficiently distinguishable in topic to refute a claim of critical bearing on the substance of "Girls."
posted by miss tea at 10:03 AM on November 25, 2013


Artw, yeah you'd think they'd be able to 'upworthy' a cute ad for their product without having to ride in on the coat tails of controversy like this. It's not like the founder isn't an experienced marketing person, and her VP of marketing is too, as that Washington post article declares. His resumé however, only shows that he's made videos viral by rewriting popular songs, so this is his one-trick pony, it seems. One size fits all instant viral?

Meanwhile, Shakesville picks the product idea apart in three feminism 101 points.

I can't help but wonder how a scrappy startup can afford that excellent legal team, when they can't seem to afford picking up the phone and asking to license a song... It strikes me as very odd. Who else would benefit from this sort of 'parody' precedence?
posted by dabitch at 12:04 PM on November 25, 2013 [4 favorites]


It's increasingly clear this isn't really a scrappy start-up - this is a tech start-up with the requisite legal team they hand out with your skim latte at Stanford's on-campus Starbucks. Who wants to bet the company often talks about how they're "disrupting" the world of girls' toys?

That Shakesville post is absolute gold, dabitch. Thank you.
posted by incessant at 2:02 PM on November 25, 2013 [2 favorites]


A third member, Adam Yauch, known by the stage name MCA

I think they got that backwards.... :(
posted by bleep at 8:14 PM on November 25, 2013


The EFF weighs in.

"Taken together, the factors favor fair use. Moreover, the video furthers the purposes of copyright. It serves the public interest by advancing political criticism and debate regarding sexist stereotypes about girls and engineering. What is more, it’s a classic example of growing the cultural commons by remaking existing cultural works to create new insights and expression. That kind of creativity is what fair use is for. And it’s part of what made the Beastie Boys great.

On the merits, then, the fair use analysis is solid. But expect to hear this counterargument: that one of the most basic “copyrights” is the right to control how your work is used—including whether it is used at all. Proponents of this kind of claim will often invoke J.D. Salinger’s steadfast opposition to any adaptions of his works. But the argument forgets that every copyright set out in the Copyright Act is subject to numerous exceptions – including fair use. Copyright ≠ total control."
posted by naju at 10:40 PM on November 25, 2013


Quoting a FB friend responding to the embarrassing EFF letter:

"EFF gets each point wrong. 1) it's obviously a commercial use, their "mission" is irrelevant if they are making a profit -- otherwise TOMS shoes could use whatever music they wanted without paying; 2) it doesn't matter that there was "ample chance for compensation," that's not up to GoldieBox to determine; 3) it's clearly a rip-off trading on the equity of the song; 4) not paying musicians to license their music is the very definition of market harm."

That letter made me lose some respect for the EFF, an org I've donated to for years.
posted by ThatFuzzyBastard at 10:52 PM on November 25, 2013 [7 favorites]


Hm. It doesn't sound like your FB friend has read many fair use cases. You can quibble with EFF's stance on the four factors to some extent, but they've more or less described the way the analysis goes down. A significantly transformative use DOES outweigh the commercial nature of that use... this is established court precedent, EFF is not just pulling things out of thin air. Some of the other statements your friend made just sounds like he doesn't understand the philosophy and purpose of fair use to begin with.
posted by naju at 11:12 PM on November 25, 2013 [1 favorite]


since the legal standard requires a showing that it contains "critical bearing on the substance or style of the original composition . . ."

Substance of sexist song is sexist. Parody song calls out sexism. In my view, parody song does not have to be a blow-by-blow rebuttal of sexist song to bring a 'critical bearing on the substance' of sexist song. It need only conjure up a contrast, thrown into starker relief by the overlapping similarities - in this case, the melody and 'girls' refrain, which conjures up the older, sexist lyrics, contrasted with the girl-positive lyrics of the newer, significantly transformative work.

Quoting a FB friend responding to the embarrassing EFF letter:

Your friend's first point alone (re commercial use) was shitcanned in Campbell v Acuff-Rose Music, which specifically found that a commercial parody can qualify as fair use.

If I may say, overall this thread seems to be a lot of 'but the Beastie Boys are awesome, and when they rip off stuff it's different and their commercial goals don't count, and also those toys are pink and stupid and commercial, and I don't like any of it, so it must be illegal.' I'm not at all sure the law works that way in real life.
posted by obiwanwasabi at 1:24 AM on November 26, 2013


(Incidentally, if you want an 'articulate specific parody', how is this not specific enough? It's a line by line rebuttal, for crissakes.)

Girls - to do the dishes / Girls - to build the spaceship
Girls - to clean up my room / Girls - to code the new app
Girls - to do the laundry / Girls - to grow up knowing
Girls - and in the bathroom / That they can engineer that
Girls - that's all I really want is girls / Girls - That’s all we really need is girls.
posted by obiwanwasabi at 1:38 AM on November 26, 2013 [1 favorite]


I wonder where advertisers got their ideas from before they had unpaid interns to trawl YouTube for stuff to use...
posted by Grangousier at 2:20 AM on November 26, 2013 [1 favorite]


obiwanwasabi, that is such a wrong summary of the arguments here that you are either bad-faith lying, or severely misunderstanding. The problem has nothing to do with the Beasties being awesome. It has to do with this song being an *advertisement*. For a *product*. It's not a protest song. It's a commercial. Like the "ironic ads" of the 90s, this is an "earnest ad", formulated by the well-paid marketing team to slip under people's normal defenses by playing on their sense of righteousness. And you fell for it.
posted by ThatFuzzyBastard at 5:20 AM on November 26, 2013 [2 favorites]


Also, 'rebuttal' is not one of the salient factors for assessing 'parody.' In assessing parody "[t]he threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived." Campbell v. Acuff-Rose Music.

Parody is not equivalent to mimicry for refutation or rebuttal. Parody requires ridicule and/or comic effect. Id.
posted by miss tea at 6:00 AM on November 26, 2013 [1 favorite]




From the link above:

the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the law than the sale of a parody for its own sake.

So that dilutes the argument of fair use as parody.

Further, how many viewers are even aware that the Goldieblox commercial's music is using, and supposedly a parody of the Beastie Boys' original song? Really - how many viewers immediately started nodding wryly - "Ooooh. I see what they did there...clever, very clever", versus viewers like me, who had to Google the original song?

The parody argument can't have much traction if the majority of viewers have to be told it's a parody. This could of course be why they're going to such lengths to draw attention to the 'parody' part.
posted by Artful Codger at 8:25 AM on November 26, 2013


I first encountered it linked as "cool Beastie boys video for girls toy" or some variant on that, for whatever it's worth. Certainly not as an epic takedown of a 1987 song that requires an entirely straight reading of said song.
posted by Artw at 8:31 AM on November 26, 2013 [2 favorites]


That's a great link, Artw. I appreciated this: "On the other hand, in the key precedent for such issues, Campbell vs Acuff-Rose Music, Justice Souter explicitly said that 'the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence' under the law than 'the sale of a parody for its own sake'." A good smackdown for NAL commenters here who keep sputtering that the Campbell case settles the questions.
posted by ThatFuzzyBastard at 8:34 AM on November 26, 2013


Also, let's be real here: they just wanted a way to use the chorus.
posted by Artw at 8:38 AM on November 26, 2013 [1 favorite]


waxy's myth-busting on this is a must read, in my opinion.
posted by naju at 9:04 AM on November 26, 2013 [6 favorites]


Oh man, waxy's done yeoman's work here laying out the facts, with citations. So grateful. My friends on Facebook are all up in arms and suddenly everyone's an armchair lawyer. Great to have a single place to point people to learn more.

Poor Goldieblox, I hope their viral advertising plans aren't ruined by all the attention.
posted by Nelson at 9:32 AM on November 26, 2013


Do something shitty and underhanded, get attention, profit. Works more than it fails in our system so people just keep doing it.
posted by bongo_x at 10:05 AM on November 26, 2013 [1 favorite]


Legality aside, ignore of the dying request of a beloved figure who only recently passed away so you can sell toys is a pretty shitty thing to do.
posted by Joey Michaels at 1:09 PM on November 26, 2013 [7 favorites]


They're already using some lame girl empowerment claim to sell what appears to be a pretty crappy toy, so it's no leap.
posted by Artw at 6:17 PM on November 26, 2013




Here is the letter.
posted by miss tea at 8:27 AM on November 27, 2013


Looks like they want to end this in a fairly classy way. I have no problem with how either party conducted themselves, to be honest.
posted by naju at 8:41 AM on November 27, 2013


Well, that's all sensible on the part of the GoldieBlox folks.
posted by rmd1023 at 8:43 AM on November 27, 2013


Most sensible would be not doing any of this, but yes.
posted by Artw at 8:50 AM on November 27, 2013 [3 favorites]


Looks like they want to end this in a fairly classy way.

Yes they did. I don’t believe a word of it, but what are you gonna do?

They already used the song and got the publicity. They were looking to lose the public opinion war. Now they bow out and try to make themselves look "cool" and play the victim. Yuck.
posted by bongo_x at 9:06 AM on November 27, 2013 [3 favorites]


A non apology apology is "classy" now? There's not even a single "we're sorry" in that letter. Yet they take time to explain the product once again. Hiding behind "but it's for girls" isn't cute.
posted by dabitch at 9:34 AM on November 27, 2013 [2 favorites]


I don't think a "we're sorry" is necessary, it's not an apology letter. And I really think some of you are being overly cynical with the "this is an elaborate n-dimensional, 5-step strategy for publicity" angle.
posted by naju at 9:46 AM on November 27, 2013


Good on them for changing the song for the video, but if they "are actually huge fans" as they state in the letter they would have known that the Beasties have always eschewed advertising and that MCA's deathbed wish was merely a confirmation of this attitude.

"Well I might stick around, or I might be a fad, but I won't sell my songs for no TV ad." Putting Shame In Your Game - Hello Nasty
posted by mroben at 9:58 AM on November 27, 2013 [3 favorites]


And I really think some of you are being overly cynical with the "this is an elaborate n-dimensional, 5-step strategy for publicity" angle.

It doesn’t seem elaborate or especially complicated, it seems pretty straight forward and obvious.

They used it, got what they wanted out of it, then acted like it was an innocent mistake. The "We love the Beastiest Boys and were just thinking of the children" didn’t make it better. These people do this for a living, there was no way they didn’t know and it’s ridiculous for them to act like they didn't, like they’re just a couple of kids working out of their living room for a non profit.
posted by bongo_x at 10:01 AM on November 27, 2013 [2 favorites]


The only thing worse than being talked about is not being talked about.

Oscar Wilde
Irish dramatist, novelist, & poet (1854 - 1900)
posted by Artful Codger at 10:07 AM on November 27, 2013 [1 favorite]


Its amazing how they could have avoided this all by simply asking if they could parody the song for their ad. The ask, the Beastie Boys say no and everyone moves on without negative publicity for anyone.
posted by Joey Michaels at 11:07 AM on November 27, 2013


Right? But then there'd be no earned media. No long editorials at Techdirt and EFF defending their right to infringe. No organic viral spread of their name. Forgive me if I'm one of the 'cynical' ones in this thread, but I've worked in advertising since the 90s, I'm damaged goods by now.
For all we know the Beastie Boys might have said yes. They were just never given the opportunity.
posted by dabitch at 11:32 AM on November 27, 2013 [4 favorites]


I'm dismayed that so many people seem to think Goldiblox was in the wrong here. This seems to be unquestionably a parody that should be protected by fair use, and the facts that the Beastie Boys don't like being parodied or that Goldiblox was making money from their parody are both terrible reasons to restrict the fair use right to create a parody.
posted by straight at 11:55 AM on November 27, 2013 [3 favorites]


Its amazing how they could have avoided this all by simply asking if they could parody the song for their ad.

But I don’t think that was their business plan. If the BB said yes then they’d actually have to pay for it and negotiate and sign a contract. This way they get all the benefit for free. I’m sure they had this back door apology planned out long ago.
posted by bongo_x at 11:56 AM on November 27, 2013 [1 favorite]


The fact that their pink "narrative" building blocks toys are not nearly as progressive as they think they are might be a reason to hate Goldiblox, but is also not a reason to restrict their rights to create derivative works that parody the originals.
posted by straight at 11:57 AM on November 27, 2013 [2 favorites]


It may or may not be legal. We'll probably never know since GoldieBlox has changed the song so a judge will likely never rule on it. However legal and ethical are different things and what GoldieBlox did was unethical.
posted by mroben at 12:14 PM on November 27, 2013 [1 favorite]


How does that work? Goldieblox filed for something, didn't they? This filing doesn't magically stop because they removed the song now, does it? Don't they also have to drop their own case against Beastie Boys? Can they do that now?
posted by dabitch at 12:15 PM on November 27, 2013


I was just assuming they'll drop the suit now, but really have no idea.
posted by mroben at 12:18 PM on November 27, 2013


Goldieblox filed a motion for pre-emptive declaration of fair use, and in the letter they said that they'd drop the suit if the Beastie Boys lawyers said they wouldn't pursue legal action.
posted by klangklangston at 12:32 PM on November 27, 2013


That this is all for publicity seems like an improbable n-dimensional strategy to me because at every step along the way, it means that they're intentionally seeking out potentially long, drawn-out legal battles with entities that are NOT litigation-averse - EMI, Island Def Jam, Sony, Universal - and hoping that they get mad after being pricked but crucially DON'T sue / countersue. Even after this letter Goldieblox could still easily wind up in years-long messes that they're not prepared to handle financially or otherwise. It's much more logical for me to believe that they were proceeding with the knowledge that US copyright law specifically carves out exceptions precisely for this very purpose and felt secure in their right to do so, in the rich tradition of parody that is continued every day by all sorts of people and companies - in ads, even! - without incident. And proceeding knowing they have nothing to apologize for, because this is part of the rich vein of speech that we've chosen as a society to allow and encourage. Did they parody these popular songs for the publicity? Absolutely! Did they file for declaratory judgment for the publicity? That seems like a stretch. You guys do realize that declaratory judgment is a legal strategy that happens all the damn time, for all sorts of valid reasons other than attention-seeking, right?
posted by naju at 12:38 PM on November 27, 2013 [1 favorite]


Or if you guys in advertising see the "purposefully get embroiled in potentially major legal battles for the youtube and blog hits" strategy all the time, throw out some examples...
posted by naju at 12:44 PM on November 27, 2013 [1 favorite]


what GoldieBlox did was unethical

Why? Because "Girls" doesn't deserve to be parodied? Do you think GoldieBlox are punching down instead of up here? Because it's wrong to make money from a parody? I disagree.
posted by straight at 1:19 PM on November 27, 2013


'but the Beastie Boys are awesome, and when they rip off stuff it's different

Because it is. When the Beastie Boys "rip stuff off" (I assume you're talking about sampling?) they have to get permission and pay for the right to use both the recording and usually also the composition. Or they get sued. And stand a good chance of losing. That characterization of the argument is kinda facile.

Dear Adam and Mike,

We don’t want to fight with you.


LOL what!?! "We don't want to fight, we just wanted to use your property to sell our stuff without asking permission and then sue for the right to do it because lawyers are scary, also can you stop them from asking us to stop using your song without permission if we stop using your song without your permission?"
posted by Hoopo at 1:19 PM on November 27, 2013 [2 favorites]


To be clear, Goldieblox doing this in an open letter is pretty bullshit. This looks to me like a conversation for their lawyers to have. The Beastie Boys have apparently issued no "threats" other than to ask why and how they are using their song without permission. They've stopped using the song. Unless this is about waiving costs I'm not sure what they could be referring to.
posted by Hoopo at 1:24 PM on November 27, 2013


we just wanted to use your property to sell our stuff without asking permission and then sue for the right to do it

"We just wanted to do a parody of a song, rewriting it's vile, misogynistic lyrics and using it to sell our stuff, as is our legal and moral right, and we wanted a judge to confirm that right so we don't get blindsighted down the road because you guys think you're special snowflakes whose work is too good to be parodied."
posted by straight at 1:31 PM on November 27, 2013 [3 favorites]


It's unethical because GoldieBlox used it in an advertisement, something the band doesn't want their music used for. Beastie Boys have no problem with their work being parodied, remixed and reused. They offer up a cappella tracks of their music on their website for free for people to do what they please with, as long as it's not for an ad.
posted by mroben at 1:31 PM on November 27, 2013 [1 favorite]


"You can make fun of my songs as long as nobody gives you money to do it" is not a legal or moral right for public figures like the Beastie Boys.
posted by straight at 1:34 PM on November 27, 2013 [4 favorites]


It's much more logical for me to believe that they were proceeding with the knowledge that US copyright law specifically carves out exceptions precisely for this very purpose and felt secure in their right to do so

These people aren't exactly green, it's beyond me why they wouldn't have done a bit of homework on this or at least asked for permission for an ad that they are attempting to get on the Super Bowl.

We just wanted to do a parody of a song, rewriting it's vile, misogynistic lyrics and using it to sell our stuff, as is our legal and moral right,

As far as I can tell, parody as fair use is not automatically extended to selling products. Is it? They are not selling the song, they are selling toys. That appears to be a significant distinction and not really established.
posted by Hoopo at 1:59 PM on November 27, 2013 [1 favorite]


It's not settled law, Hoopo, but the tendency is for courts to find that if the parody is sufficiently transformative and in dialogue with the original, the commercial benefit for the makers of the parody is irrelevant.

Morally, I'd say that the issue is whether the parody itself is punching up or punching down. If the ex-gay people rewrote the lyrics to "Born this Way" with some sort of "you can choose not to be gay" lyrics, that would be legally protected but morally reprehensible. I don't see any moral objections to rewriting "Girls" with more feminist lyrics regardless of what you want to use it for.

In fact, I'd say there's a good argument to be made that using "Girls" to advertise less-sexist toys in the face of the Beastie Boys's desire for their music never to be used in ads could be considered part of the parody. "You want to sing about girls being objects for you to use? Well we're going to change it so girls are the subject and your song is the object that gets used."
posted by straight at 2:33 PM on November 27, 2013 [2 favorites]


Mashable reckons they 'won' this.

Still, GoldieBlox appears to have benefited from using the song without permission. Before the company pulled the first version of the ad, it had racked up 9 million views. While it's hard to say what the value is of such a viral video, a back-of-the-envelope calculation based on ad revenues from the song Gangnam Style (about $1.7 million for 1 billion views) reveals that the figure is around $156,000. ~Mashable

I thought "Girls" was a parody from the start? Like "Fight for the right to party" was spoofing "I wanna rock" and similar song. Can any lawyers in the thread tell us if double parody like double jeopardy? ;)
posted by dabitch at 3:16 PM on November 27, 2013 [1 favorite]


"Because it is. When the Beastie Boys "rip stuff off" (I assume you're talking about sampling?) they have to get permission and pay for the right to use both the recording and usually also the composition. Or they get sued. And stand a good chance of losing. That characterization of the argument is kinda facile."

What? Sure, the Beasties are, at this very moment, still in a lawsuit because they didn't clear samples on Paul's Boutique. But there are tons more samples they've never been sued for and weren't cleared at all. In fact, that's an ironic subscript to Paul's Boutique — it's one of the top five hip hop albums ever, and they were able to make it (and Licensed) because an airline sampled their rip-off of Carvell.

So, no, it's not facile. It's part of a long, complex discussion of fair use and the Beastie Boys, one that you seem to be trying to shoehorn into some bizarre, ahistorical simplistic rubric.
posted by klangklangston at 3:17 PM on November 27, 2013 [1 favorite]


the tendency is for courts to find that if the parody is sufficiently transformative and in dialogue with the original, the commercial benefit for the makers of the parody is irrelevant.

Are there cases that would demonstrate this tendency? The most frequently cited one here "Campbell v Acuff-Rose" but I'm not entirely sure that works in this situation. One of the comments in Campbell v Acuff-Rose is "The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake." The purpose of the commercial is to sell toys by commenting on the sexist nature of other girls toys. That would seem to be satire rather than parody to begin with, and not the same thing as selling the parody song itself. IANAL though.

to advertise less-sexist toys

This is their claim, hardly an established fact. They're pink and pastel-colored tinkertoys, I'm not sure how that makes them less sexist
posted by Hoopo at 3:18 PM on November 27, 2013 [3 favorites]


"Are there cases that would demonstrate this tendency?"

I actually posted a law review article upthread that deals explicitly with commercial claims of fair use and has citations galore.

It's also worth noting that "less indulgence" means what it says, and it does not say that a commercial parody cannot be sufficiently transformative, just that it has a higher bar. As such, it does not rebut Straight's comment.
posted by klangklangston at 3:21 PM on November 27, 2013


Sure, the Beasties are, at this very moment, still in a lawsuit because they didn't clear samples on Paul's Boutique...It's part of a long, complex discussion of fair use and the Beastie Boys, one that you seem to be trying to shoehorn into some bizarre, ahistorical simplistic rubric.

Paul's Boutique was released in 1989 when the legality of sampling was still pretty new ground. De La Soul and Biz Markie got sued for not getting permission in 1991. Now the established practice for the Beastie Boys and everyone else is to clear the samples by getting permission, and it's because if they don't, they might get sued and lose, because it's not OK to do otherwise. It's really not that long or complex.

it does not say that a commercial parody cannot be sufficiently transformative, just that it has a higher bar. As such, it does not rebut Straight's comment.

It has a higher bar, so there is some question whether this would be fair use, so any declarative statement that it is fair use seems a bit premature. Straight's comment was declarative.

I actually posted a law review article upthread that deals explicitly with commercial claims of fair use and has citations galore

And it seems to be from 1992. Has it been drawn on in any relevant decisions since? Does it reflect the current state of law? I have no idea.
posted by Hoopo at 3:48 PM on November 27, 2013 [4 favorites]


the tendency is for courts to find that if the parody is sufficiently transformative and in dialogue with the original, the commercial benefit for the makers of the parody is irrelevant.

False. The court said that if the parody is used as advertising (not "for the commercial benefit of the makers," which could include just selling the parody song), it would have a higher bar to clear. Thus far, there has not been a precedent-setting case to determine exactly how high that bar would be. But it is most assuredly not true that the court ruled that being sufficiently transformative means you can make a commercial with someone else's music.

I used to laugh at the gullibility of National Review readers who would buy shoddy products because the makers advertised their conservative values. I took it as proof that conservatives were easily gulled. This thread is a useful reminder that many a progressive is equally prone to dittoheading a profit-making company when it wraps crappy products in the flag.
posted by ThatFuzzyBastard at 12:33 AM on November 28, 2013 [4 favorites]


This thread is a useful reminder that many a progressive is equally prone to dittoheading a profit-making company when it wraps crappy products in the flag.

What a weird mischaracterization of people who are trying to explain the case law and how fair use is supposed to protect situations like this. Personally, I've said nothing about whether I think Goldieblox's product is any good. Straight also mentioned that he doesn't think they're as progressive as they claim. Some of us are just seeing another aspect that doesn't involve "dittoheading" but rather the state of the law - in fact, fair use is one of the few concessions towards a sane copyright policy we have left, and we need to assert it strongly when it needs to be asserted.

As for cases aside from Campbell - Mattel v. Walking Mountain was a notable 2003 parody case that has some parallels to this one - it's described in this paper. An artist used Barbie dolls in his work (naked, in sexualized and absurd positions) in an attempt to critique "the objectification of women associated with Barbie" and to attack "the conventional beauty myth and the societal acceptance of women as objects, because this is what Barbie embodies." The court noted that it was a commercial endeavor, but moved past those concerns quickly:

Clearly, Forsythe had a commercial expectation and presumably hoped to find a market for his art. However, as the Supreme Court noted in Campbell , even works involving comment and criticism "are generally conducted for profit in this country." Id. (quoting Harper & Row, 471 U.S. at 592, 105 S.Ct. 2218 .) On balance, Forsythe's commercial expectation does not weigh much against him. Given the extremely transformative nature and parodic quality of Forsythe's work, its commercial qualities become less important. Id. at 579 , 105 S.Ct. 2218 (recognizing that the more "transformative the new work, the less will be the significance of the other factors").

The Court also compared this use to the sort of parody song cases that Campbell set a precedent for, and noted that the use created a new character and context:

For our purposes, Forsythe's use is no different from that of a parodist taking a basic melody and adding elements that transform the work. See Campbell, 510 U.S. at 589 , 114 S.Ct. 1164 (noting that 2 Live Crew's rendition of "Pretty Woman" did not approach verbatim copying because, even though 2 Live Crew may have taken the most recognizable portion of the work, it had added "scraper" noises and overlays to the music). In both Forsythe's use of the entire doll and his use of dismembered parts of the doll, portions of the old work are incorporated into the new work but emerge imbued with a different character.

He offered ‘a different set of associations and a different context for this plastic figure.' The court concluded that ‘[i]t is not difficult to see the commentary that Forsythe intended or the harm that he perceived in Barbie's influence on gender roles and the position of women in society.’

So the Court clearly saw the social criticism in that work, considered it easy to perceive, and said the use was transformative in the same way that a parody song (like Goldieblox's use) would be. It dismissed the commercial nature pretty quickly in light of the significantly transformative use. It's not hard to extrapolate a lot of the court analysis from this case onto Goldieblox's facts.
posted by naju at 9:12 AM on November 28, 2013 [2 favorites]


As for cases aside from Campbell - Mattel v. Walking Mountain was a notable 2003 parody case that has some parallels to this one - it's described in this paper.

That's not an ad either. It is the product itself. A higher bar seems to exist for the use of copyrighted material in an advertisement than for the parody itself
posted by Hoopo at 9:21 AM on November 28, 2013 [2 favorites]


There's a print ad for Naked Gun 33 1/3 in the waxy link that is pretty much explicitly the exact sort of parody as the Goldieblox parody. If anything, Goldieblox has a stronger case than the Naked Gun folks did, because their parody of "Girls" specifically relates to their product and the message of the ad in a way that the Naked Gun's source material (an Annie Leibowitz photograph of pregnant Demi Moore) did not.
posted by Sara C. at 9:31 AM on November 28, 2013 [2 favorites]


Aside from the political angle, it seems like a lot of people’s opinion depends on whether the ad appears to be parody to them. It’s not parody to me, but that’s a personal thing, like defining "funny" or "pornography".
posted by bongo_x at 12:01 PM on November 28, 2013 [1 favorite]


The Naked Gun, like Mad Magazine used to do with every one of their covers, was parodying an iconic image. Goldieblox are taking the score to a song, changing lyrics in a 90 second commercial. When they put it on youtube they even called the advert "Beastie Boys" something. I'm not so sure that this case can be so clearly compared to the cases brought up here. A 90second advert isn't the same as a large body of bizarre Barbie artworks.

Put it this way, when Of Montreal sold their song with new lyrics to Outback Steakhouse, they got paid for it. Why shouldn't Outback Steakhouse have said "we don't have to, it's clearly a parody, nobody sings about ribs! It's funny!" and been content with not paying them, or even asking them at all?

Or the swiffer song! Devo re-recorded it, singing "Just Swiff it" instead of "Just Whip it, Whip it real good". Y'all telling me Swiffer could have saved lots of money and not called Devo there? That ad was funny as hell too.
posted by dabitch at 12:05 PM on November 28, 2013 [2 favorites]


Goldieblox are taking the score to a song, changing lyrics in a 90 second commercial.

My understanding is that they also re-arranged the instrumentation.

They absolutely did NOT use the original song's actual backing track without lyrics. Which would have given them not a single leg to stand on and doesn't depend on whether the song is parody at all.

when Of Montreal sold their song with new lyrics to Outback Steakhouse, they got paid for it. Why shouldn't Outback Steakhouse have said "we don't have to, it's clearly a parody, nobody sings about ribs! It's funny!"

Because Of Montreal actually wrote and performed the song.

I fail to see what using the word "Beastie Boys" as web copy on you tube has to do with anything. Either it's parody or it isn't.
posted by Sara C. at 12:10 PM on November 28, 2013


Devo re-recorded it, singing "Just Swiff it" instead of "Just Whip it, Whip it real good". Y'all telling me Swiffer could have saved lots of money and not called Devo there? That ad was funny as hell too.

Again, the difference is that Devo were hired to re-write and re-perform the song. That is why they were paid.

Do you seriously not see the difference between "used as source material to create a completely original derivative work" and "hired to create something"?
posted by Sara C. at 12:11 PM on November 28, 2013


I do see the difference, I'm saying that if the Goldieblox home-rearrangement is OK by law here, brands need not call the original artists to perform, or simply approve the use of their songs in the future. Because brands then simply say it's fair use, claim it's a parody, and artists may very well not be able to afford to take it to court. National brands may even, like in this case, beat the songwriters to it and file first too.
posted by dabitch at 12:14 PM on November 28, 2013 [1 favorite]


My guess is that in the Outback and Swiffer situations, the legal departments of those companies felt like replacing the word "whip" with "swiff" might not pass muster as parody, and the bands in question were open to working with the companies, so hiring them to help create the commercial was an easy solution. And certainly much cheaper than the ensuing legal battles would be in such a borderline case.

In the Goldieblox case, there are two important differences.

Firstly, it's very easy to make the case that use of the song is parody. The new lyrics subvert the original message of the song. Also, the song has been significantly changed, which is an important factor in the case law on parody. You can't just use the same song but change one word in order for it to count as fair use under parody. The parody question is a 100% open and shut case.

Secondly, it's the Beastie Boys, who have made it clear that they are not interested in working with advertisers. So there's no quick fix of "why pay them a $500,000 settlement when we could pay them $100,000 to perform in the ad".

From a business and production standpoint, it absolutely makes sense to do what Goldieblox did.
posted by Sara C. at 12:25 PM on November 28, 2013


Also, of course, no, brands need not hire the original artists to perform any song, ever, for any reason, no matter what.

The world is FULL of knockoffs of pop songs, performed by different artists, because it saves someone a lot of money to do it that way rather than use the original.

This is not controversial in any way.
posted by Sara C. at 12:29 PM on November 28, 2013


This thread is a useful reminder that many a progressive is equally prone to dittoheading a profit-making company when it wraps crappy products in the flag.

Nonsense. This is progressives standing up for a free-speech right on principle, even if they don't like the speech being protected.
posted by straight at 12:35 PM on November 28, 2013 [1 favorite]


Sara C, the quick fix sound completely logical from a business standpoint. It's cheaper and quicker. And nobody is really friends with a brand, so brands can be assholes and still move product. Brands can thus hitch-hike a ride on a rap-bands fame and get their own name out there, where the borrowed interest factor is literally borrowed.
I wish there was some sort of moral rights in US Copyright law, like there is in Europe and Canada, and the original author of the work can refuse to let their work be used by people or association they don't want to approve to use their work. As it stands here, as far as I understand it, The Westboro Baptist Church can take the lyrics to "Sure Shot" and parody them to send women back into the kitchen, and all gays to hell. They can even make their video an advert on youtube with Beastie Boys "Sure Shot" in the title, and shilling "how to brainwash your children love WBC" at the end. And Beastie Boys will have no say about it. Because parody, and everyone in the Westboro Baptist Church family are lawyers so they would love to play in court over that for years to come. That's kind of a bummer.
posted by dabitch at 12:37 PM on November 28, 2013


Sara C. when you are talking about knock offs of pop songs are you talking about covers, sync licensed songs, or soundalikes, and in what context?
posted by dabitch at 12:42 PM on November 28, 2013


Wait, a commercial is free speech? I feel like I've missed something here.
posted by dabitch at 12:43 PM on November 28, 2013


the original author of the work can refuse to let their work be used by people or association they don't want to approve to use their work.

This is what I think you're not clear on.

The Beastie Boys have every right to refuse to let their work be used by anyone they want to refuse, on a case by case basis.

But the song Goldieblox used in the add isn't the Beastie Boys' work. It is the work of the people they hired to write and perform a parody of "Girls" with totally different instrumentation and lyrics.

The Beastie Boys didn't write the song Goldieblox used in their ad. They didn't perform the song, either. So they don't really have a leg to stand on, because US copyright law allows for derivative use in the case of parody. Which is what the Goldieblox version is.

I'm not defending Goldieblox in being an evil corporation or whatever. The reality is that they are legally in the clear in this case, a judge would very likely side with them, and the Beastie Boys unfortunately have no control over it.
posted by Sara C. at 12:45 PM on November 28, 2013


The Beastie Boys didn't write the song Goldieblox used in their ad. ... I thought they wrote Girls. I'm sorry but the song in the ad sounded like a "Girls" cover, just sung by little girls and with new lyrics. Did Beastie Boys not write the music and verse-rythm to "Girls"?
posted by dabitch at 12:50 PM on November 28, 2013


Wait, a commercial is free speech? I feel like I've missed something here.

Yes, in the US. We don't categorize advertisement as a separate category of speech here in any way.

As it stands here, as far as I understand it, The Westboro Baptist Church can take the lyrics to "Sure Shot" and parody them to send women back into the kitchen, and all gays to hell. They can even make their video an advert on youtube with Beastie Boys "Sure Shot" in the title, and shilling "how to brainwash your children love WBC" at the end.

Yes, as long as the WBC completely re-wrote the lyrics to Sure Shot in a way a judge would be sure to recognize as parody, re-arranged the instrumentation, and did their own performance of this totally different not-actually-Sure-Shot song.

As far as I know there are no laws or existing legal precedents in the US governing youtube tags and how they relate to IP.
posted by Sara C. at 12:52 PM on November 28, 2013


dabitch, my impression is that many Europeans would, in general, view the US freedoms of speech that protect Westboro Baptist Church as broken. I very strongly disagree.

And (on preview), yes commercial speech, while subject to more regulation than other speech, also enjoys (and deserves) many free-speech protections.
posted by straight at 12:52 PM on November 28, 2013 [1 favorite]


Y'all telling me Swiffer could have saved lots of money and not called Devo there?

Maybe? I think the contemporary reality of the matter is that most agencies don't want to chance potentially expensive litigation so they just go and get the appropriate licensing. Because there is some question there about legality. Even with respect to the Naked Gun poster thingy, it's specified that fair use will be considered on a case-by-case basis.

But the song Goldieblox used in the add isn't the Beastie Boys' work. It is the work of the people they hired to write and perform a parody of "Girls" with totally different instrumentation and lyrics.

The Beastie Boys didn't write the song Goldieblox used in their ad. They didn't perform the song, either. So they don't really have a leg to stand on


I don't think this is the argument. They did write the composition. A song doesn't become my song when I play it on my own instrument and sing different words on it. Goldieblox are saying it's fair for them to use the Beastie Boys' copyrighted material in this way, which acknowledges that it is the Beastie Boys' intellectual property. The composition is the important part, and so is the parodic nature of the song. Think George Harrison getting sued for "My Sweet Lord"
posted by Hoopo at 12:54 PM on November 28, 2013 [1 favorite]


I'm sorry but the song in the ad sounded like a "Girls" cover, just sung by little girls and with new lyrics. Did Beastie Boys not write the music and verse-rythm to "Girls"?

The whole point here is that, under US law, a parody counts as a different song and is not owned by the people whose song is being parodied.
posted by straight at 12:55 PM on November 28, 2013 [1 favorite]


How can this whole thread have gone by without anyone mentioning the parody song "Squirrels"?
posted by spacewaitress at 12:57 PM on November 28, 2013 [1 favorite]


I thought they wrote Girls. I'm sorry but the song in the ad sounded like a "Girls" cover, just sung by little girls and with new lyrics.

Yes, once you re-write the lyrics and re-do the instrumentation and have different people perform the song, it stops being the original song, and you can do with it what you will.

In my understanding covers are absolutely not required to be licensed at all, unless you use the original words. In which case you're talking to the songwriter, not the band in general. (And, in fact, if MCA didn't personally write "Girls", his feelings about advertising have nothing to do with it.)

For instance there's a great cover/homage/thing to The Who's "My Generation" done by a French Tunisian singer named Jacqueline Taieb. But it doesn't use the original lyrics aside from the familiar "ttttalkin' bout my gggggggeneration" chorus. And the instrumentation is also different. I'm pretty sure this cover wouldn't have cost Taieb's label anything.
posted by Sara C. at 1:00 PM on November 28, 2013


under US law, a parody counts as a different song and is not owned by the people whose song is being parodied.

No, it's considered fair use of the song that is owned by the people whose song is being parodied. I can't use the music from Beat It by getting licensing from Weird Al
posted by Hoopo at 1:01 PM on November 28, 2013 [1 favorite]


Yes, once you re-write the lyrics and re-do the instrumentation and have different people perform the song, it stops being the original song

This is simply not true.
posted by Hoopo at 1:10 PM on November 28, 2013 [2 favorites]


"Eat it" isn't a parody of "Beat it." It's a silly song using, with Michael Jackson's permission, the music from "Beat it."
posted by straight at 1:10 PM on November 28, 2013 [2 favorites]


"Eat it" isn't a parody of "Beat it."

it is, however, a parody. A parody does not have to be a parody of the thing itself.
posted by Hoopo at 1:13 PM on November 28, 2013


Oh, good because that confused me too Hoopo. So if agencies/brands/marketing people are only licensing songs to avoid potential legal battles they might as well stop now because we all know that Indie bands aren't making money anyway, so it's not like they're gonna sue them. And if new bands can kiss that potential source of income goodbye, I guess they have to just sell more T-shirts.
posted by dabitch at 1:15 PM on November 28, 2013


Also, straight, Wikipedia pointed this out:

"Yankovic considered that his first true satirical song was "Smells Like Nirvana", which references unintelligible lyrics in Nirvana's "Smells Like Teen Spirit".[43] Other satirical songs include "Achy Breaky Song", which refers to the song "Achy Breaky Heart", "(This Song's Just) Six Words Long", which refers to the repetitious lyrics in "Got My Mind Set on You", the unreleased "It's Still Billy Joel to Me", and "Perform This Way", set to Lady Gaga's "Born This Way"."

"Amish Paradise" also come to mind. Getting permission is something Weird Al does, regardless, and he pays the artists royalties. Take from that what you want, it really doesn't say anything whether he is legally required to.
posted by Hoopo at 1:25 PM on November 28, 2013


actually, no, it is a parody of Beat It. It is not a satire of Beat It though.
posted by Hoopo at 1:35 PM on November 28, 2013


Yes, once you re-write the lyrics and re-do the instrumentation and have different people perform the song, it stops being the original song, and you can do with it what you will.

In my understanding covers are absolutely not required to be licensed at all, unless you use the original words.


This would be a big part of the misunderstanding here; this is all completely wrong. The song is a completely different thing than the performance, it has nothing to do with whether you replayed it. That is a separate issue of licensing the performance. Think book vs movie. You can make a porn movie called "Hairy Porter" if it’s a parody, you can’t just make a Harry Potter movie without permission just because you changed some things.

By your definition no one would have to ask or pay for permission to make an instrumental version of a song, also not true.

The song belongs to the songwriter (music and words being two separate parts of that). The recording is a different thing with different owners etc. The Beastie Boys version of "Girls" is just a version, just like mine if I were to do one, they just happened to write it. Clive Barker made "Hellraiser" and he wrote the book. Two different things. If I want to use a clip of the "Hellraiser" the movie for something I have to get permission for that. If I want to remake "Hellraiser" that’s something completely different. I can’t remake "Hellraiser" without permission just because I change the words and have different actors.

There’s also the issue of sound-alikes.
posted by bongo_x at 1:46 PM on November 28, 2013 [3 favorites]


"The Naked Gun, like Mad Magazine used to do with every one of their covers, was parodying an iconic image. Goldieblox are taking the score to a song, changing lyrics in a 90 second commercial."

Goldiblox are taking an iconic song and using the change to comment on the original song.

"Put it this way, when Of Montreal sold their song with new lyrics to Outback Steakhouse, they got paid for it. Why shouldn't Outback Steakhouse have said "we don't have to, it's clearly a parody, nobody sings about ribs! It's funny!" and been content with not paying them, or even asking them at all?"

I dunno, why don't we think this through? What would make the Outback commercial parodic? What comment are they making on "Let's pretend we don't exist, let's pretend we're in Antarctica" with "Let's go Outback tonight, life will still be there tomorrow?" Is that as transformative a parody as the Goldiblox, which essentially reverses the underlying literal message of the source material?

Why, it's almost like we can think things through and dismiss a specious slippery slope argument!

"That ad was funny as hell too."

Now you're just trolling.

"I wish there was some sort of moral rights in US Copyright law, like there is in Europe and Canada, and the original author of the work can refuse to let their work be used by people or association they don't want to approve to use their work. As it stands here, as far as I understand it, The Westboro Baptist Church can take the lyrics to "Sure Shot" and parody them to send women back into the kitchen, and all gays to hell. They can even make their video an advert on youtube with Beastie Boys "Sure Shot" in the title, and shilling "how to brainwash your children love WBC" at the end. And Beastie Boys will have no say about it. Because parody, and everyone in the Westboro Baptist Church family are lawyers so they would love to play in court over that for years to come. That's kind of a bummer."

"Moral rights" are a terrible idea and antithetical to free speech. Westboro should be legally able to make a parody of the Beastie Boys song, even if they're spewing some repugnant shit. Because that same freedom gives us the ability to parody vile shit when it comes out. That's the way this works.

"Wait, a commercial is free speech? I feel like I've missed something here."

C'mon, you were grandstanding on how long you've covered advertising and you don't know that commercial speech is still granted first amendment protections that are only diminished by substantial public interest? Yes, commercials are free speech; they were held to be integral to the idea of the free market, in sharing information to consumers.

"Yes, once you re-write the lyrics and re-do the instrumentation and have different people perform the song, it stops being the original song, and you can do with it what you will."

Not really. It removes mechanical rights, but composition rights are still there. However, if something is enough of a transformation, those composition rights are trumped by the freedom of the notional "marketplace of ideas."

"In my understanding covers are absolutely not required to be licensed at all, unless you use the original words. In which case you're talking to the songwriter, not the band in general. (And, in fact, if MCA didn't personally write "Girls", his feelings about advertising have nothing to do with it.)"

No, in general you still have to license the composition unless you "transform" it into a new composition, in this instance through parody.

And, oddly enough, for covers, there's a mandatory licensing scheme for composition rights.

"it is, however, a parody. A parody does not have to be a parody of the thing itself."

A parody, in order to be fair use, has to make some comment on the specific work it is parodying in order to justify the fair use of the underlying property, otherwise the original underlying work isn't important and you can make a similar song to satirize something else. But there has to be a connection to the underlying work.
posted by klangklangston at 2:03 PM on November 28, 2013 [1 favorite]


I think the thing that trips people up about Weird Al is that he got famous making parody videos of music videos, the videos were very obviously parodies. Some of the songs by themselves may have been questionable.
posted by bongo_x at 2:18 PM on November 28, 2013 [1 favorite]


A parody, in order to be fair use,

This is probably what was meant by straight and I missed it. That may be the case. Substitute "Smells Like nirvana" for "Eat it" and my point is the same though, you would still need to approach Nirvana and not Weird Al for licensing use of the composition.
posted by Hoopo at 2:19 PM on November 28, 2013


Goldiblox are taking an iconic song and using the change to comment on the original song.

Nope. Goldox are taking an iconic song and using the change to sell a product. The court has made very clear that this is not the same as a parodic work that stands alone, and will receive much stricter scrutiny.
posted by ThatFuzzyBastard at 2:40 PM on November 28, 2013 [1 favorite]


"Nope. Goldox are taking an iconic song and using the change to sell a product."

Well that was certainly a stunning, fact-filled rebuttal!

In the parody song from Goldiblox, they don't mention selling toys directly (though they comment on toys available) — they rewrite it as a girl power anthem. That it is a commercial is because of the tag at the end and that it was produced as part of a campaign. But arguing that there is no commentary on the underlying composition is just flat stupidity, and by issuing your categorical statement, that's what you're doing.

The courts have made next to nothing on fair use very clear — even to the point of encouraging a case-by-case evaluation, and "strict scrutiny" is not an applicable standard here. The Goldiblox parody would be treated with the starting presumption that it is not fair use, but that does not, in fact, mean that it is not fair use.

If you can't see the connection between the lyrics of the Beastie Boys song and what they were changed to, you're not trying.
posted by klangklangston at 2:48 PM on November 28, 2013


Well that was certainly a stunning, fact-filled rebuttal!

You are aware that that was not the entirety of the response?

Also I'm not sure what you mean, I think it's pretty clear advertising is explicitly held out as being held to a higher standard when considering fair use. Case-by-case doesn't mean they will never consider anything that came before.
posted by Hoopo at 3:13 PM on November 28, 2013 [1 favorite]


Substitute "Smells Like nirvana" for "Eat it" and my point is the same though, you would still need to approach Nirvana and not Weird Al for licensing use of the composition.

The reason you can't license the tune of "Smells Like Nirvana" from Weird Al is that the tune by itself is not a different song from "Smells Like Teen Spirit." It only becomes a parody song distinct from the original when it's got the new words attached.

I think you probably could license Weird Al's recording of "Smells Like Nirvana" to use in a commercial without involving Nirvana at all (if he'd let you, which he probably wouldn't).
posted by straight at 3:43 PM on November 28, 2013


I was talking about the music. Weird Al can probably (but doesn't) claim fair use of copyrighted material as parody. But if I wanted to use the opening riff, I have to go to Nirvana. It has not ceased to be the original song because Weird Al changed the lyrics and had new people record the music.
posted by Hoopo at 3:55 PM on November 28, 2013


What I'm saying is that you can't license the music from Weird Al because the music by itself isn't a different song. There's no difference between the music to "Smells Like Nirvana" and the music to "Smells like Teen Spirit" so it would be nonsense to claim you're licensing one rather than the other.

That music only becomes two legally distinct songs when the lyrics are attached.
posted by straight at 3:59 PM on November 28, 2013


I think you probably could license Weird Al's recording of "Smells Like Nirvana" to use in a commercial without involving Nirvana at all

No, you cannot. The songwriters of "Smells Like Nirvana" are Kurt Cobain, Dave Grohl, Krist Novoselic, "Weird Al" Yankovic.
posted by bongo_x at 4:01 PM on November 28, 2013 [1 favorite]


C'mon, you were grandstanding on how long you've covered advertising - no, I was telling you how long I've worked in advertising. In Europe. Where we license songs even when we change the lyrics to them, and brands can't advertise "cigarettes are totally good for you" because commercial speech isn't free speech the same way a non-corporations, ie: persons, speech is free. I honestly thought commercial speech might have limitations in the US too.
posted by dabitch at 5:04 PM on November 28, 2013


Not sure why we're on this tangent, but - there's a "sound recording", and then there's an underlying "musical composition." Two separate copyright bundles that need to be considered. Think: the sound waves of a recording vs. the musical notation and words. So for example, when someone makes an unauthorized cover version of a song, that implicates the musical composition copyright, but not the sound recording copyright. In a sampling situation, both may be implicated (or just the sound recording copyright, depending on the sample.) The sound recording is owned by Weird Al's label, and the musical composition is owned by the writers (Nirvana and Weird Al.) You'd probably just go through a music licensing clearinghouse for permission and not think too much about the specifics.

None of this is all that important to the situation we're talking about - in the Goldieblox instance, the musical composition of "Girls" is being infringed. Both parties will agree to that, it's super obvious. That's just the starting point. But that infringement of the musical composition might be acceptable because of a fair use exception, parody, that's been carved out. That's where the battle is.
posted by naju at 5:06 PM on November 28, 2013 [1 favorite]






Ah, you're using "strict scrutiny" in its legal term-of-art sense. Well no, this is not "strict scrutiny" in the sense that civil rights cases use it, no. But it certainly is presumed to be infringing. As Goldieblox seems to have known, considering that they retired their preemptive strike as soon as people noticed they were making it.
posted by ThatFuzzyBastard at 7:57 AM on November 29, 2013 [1 favorite]


It's not accurate to say that it's "presumed to be infringing" either. The fair use analysis has four factors, with balancing out of different issues and competing interests in each factor. There's lots of room for "well yeah, but..." that a court can engage in, and to some extent they have to take everything on a case-by-case basis and try to divine the process that rulings in the past have followed based on the current facts. The commercial nature of the work weighs against Goldieblox in one factor, and that can be mitigated (by significantly transformative use; by lack of market harm; etc.) There's no "presumed to be infringing" in that fairly complex, opaque balancing process. There are no silver bullets here, as much as you'd like to simplify the analysis by going down that route. This is why I feel a bit frustrated when so many people have comments to the effect of "but... advertisement!" as if that should shut down all discussion.
posted by naju at 11:12 AM on November 29, 2013 [1 favorite]


Does anyone here know if Goldieblox has dropped the case yet? Goldieblox open letter reads: "In addition, we are ready to stop the lawsuit as long as ..." so that means they haven't, yet.
posted by dabitch at 10:35 AM on November 30, 2013


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