Goldieblox and the 3 Beastie Boys: Fair Use or Infringement?
As a mother of a little girl, I came across Goldieblox in my search for un-pink toys. The company's goal is to inspire a new generation of engineers to equalize the playing field as only 11% of engineers are women, worldwide. As someone also raised on late '80s -- early '90s hip hop, when I saw their commercial set to the tune of the Beastie Boys' "Girls," I had one more reason to be a fan.
But, rather predictably, the Beastie Boys are not fans.
The Goldieblox Commercial
The Goldieblox commercial is set to the tune of "Girls" but takes on very new meaning. While the original song's lyrics proclaim to like "girls, to clean up my room, girls, to do the laundry, girls, and in the bathroom," the Goldieblox commercial replaces the lyrics with "girls, to build the spaceship, girls to code the new app, girls to grow up knowing, that they can engineer that." As the music is playing, the commercial shows the girls using traditional "girly" toys to create amazing engineering feats.
Apparently, under the threat of copyright infringement claims by the Beastie Boys, Goldieblox filed a complaint for declaratory judgment and injunctive relief, in the U.S. District Court for the District of California, on the basis of parody and the fair use doctrine. In its complaint, Goldieblox asserts that it "created its parody video specifically to comment on the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect." As of this writing, the video has been watched over 8 million times.
On Monday, the Beastie Boys issued a statement, that while lauding the creativity of the video, and showing support for empowering women, proclaimed, "make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads," reports Billboard.
One of the factors in the fair use analysis is whether the work is for a commercial purpose, which in this case weighs against Goldieblox because the song was used in a commercial selling products. However, that factor alone is not determinative, and where as here, the actual song "Girls" is under fire, it is a true parody in the legal sense of the word. A side-by-side examination of the lyrics will show that clearly (you can see it for yourself in the complaint linked above). In this case, the Beastie Boys may not want to have their work used for commercial purposes, but it may not be up to them, at least this time around.
But that's just if we look at copyright law. Today, Goldieblox pulled the "Girls" song from their ad when they learned that the late Adam Yauch added a handwritten line in his will stating: "Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes," reports Forbes. Though tax and estate lawyers question whether the interlineation would even be enforceable, Goldieblox in an open letter stated that they removed the song from the ad, and would drop the suit for declaratory judgment.
What do you think? Is the Goldieblox fair use or infringement? How would you advise your clients on this issue? Tell us on Facebook at FindLaw for Legal Professionals.
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