Goldieblox asks Court for declaratory judgment that parody of the Beastie Boys’ song “Girls” in advertisement is permissible as fair use
The mission of Goldieblox, a toy company founded by Stanford-educated engineer Debbie Stearling, is to “disrupt the pink aisle and inspire the future generation of female engineers.” In light of the fact that only 11% of engineers in the United States are female, Goldieblox seeks to close this gender gap by marketing construction and engineering toys to young girls.
Goldieblox released a commercial this week featuring a cover version of the Beastie Boys’ well-known 80s anthem, “Girls,” but with modified lyrics. The Beastie Boys’ original version featured lyrics such as: "Girls -- to do the dishes/ Girls -- to clean up my room/ Girls -- to do the laundry/ Girls -- and in the bathroom/ Girls, that's all I really want is girls." The Goldiebox video replaces these lyrics with: "Girls -- to build the spaceship/ Girls -- to code the new app/ Girls -- to grow up knowing/ That they can engineer that/ Girls. That's all we really need are girls."
The Goldieblox video went viral and ignited a firestorm of discussion on social media about pervasive gender-stereotyping in the toy industry. In response to threats from the Beastie Boys claiming that Goldieblox’s unlicensed use of “Girls” in the advertisement constituted copyright infringement, Goldieblox has asked a California district court to issue a declaratory judgment that the use of “Girls” in the Goldieblox commercial is permissible under the fair use doctrine. According to Goldieblox’s complaint:
In the lyrics of the Beastie Boys’ song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original…GoldieBlox created its parody video specifically to comment on the Beastie Boys’ song, and to further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect.
In response to the complaint, Mike Diamond and Adam Horovitz of the Beastie Boys issued the following statement:
Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad. We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering. As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.
In determining whether the Goldieblox usage constitutes “fair use” under the Copyright Act, the Court will examine four factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market for the copyrighted work. However, the fair use analysis does not involve any “bright-line” rules, but rather a case-by-case determination, in light of the Copyright Act’s purpose to promote the progress of science and the arts.
Although the Goldieblox commercial does criticize and comment on the original “Girls” song, one factor that will weigh against Goldieblox is their commercial use of the song. However, the commercial usage alone should not be dispositive. As the Supreme Court stated in the seminal case of Campbell v. Acuff-Rose Music, “the [Copyright Act] makes clear that a work's commercial nature is only one element of the first factor enquiry into [a parody’s] purpose and character.” In that case, the Supreme Court found that 2 Live Crew’s parody of Roy Orbison’s song “Pretty Woman” was permissible under the fair use doctrine despite the fact that the parody was clearly a commercial usage. The Supreme Court held that the Court of Appeals erred in giving virtually dispositive weight to the commercial nature of the use, a presumption that was unwarranted under both prior case law and the Copyright Act.
If the Goldieblox lawsuit proceeds to trial, the Court’s final decision will be difficult to predict. However, given that the Beastie Boys actually like the Goldieblox advertisement, it seems more likely that the parties will be able to reach of settlement out of court. Stay tuned.
**UPDATE: In response to negative publicity arising out of the lawsuit, Goldieblox has posted a conciliatory letter to the Beastie Boys on the Goldieblox blog, claiming that they "don't want to fight" and are actually “huge fans” of the Beastie Boys. The letter goes on to explain: “When we made our parody version of your song ‘Girls’ we did it with the best of intentions…Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves…Although we believe our parody video falls under fair use…we have already removed the song from our video. In addition, we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team.”
It seems a bit dubious that the Goldieblox team are truly “huge fans,” given that they have called the “Girls” song “highly sexist,” and they also apparently had no idea the late Adam Yauch, who died only last year, specifically provided in his will that his music couldn’t be licensed for commercial purposes. I’m sticking with my original prediction that this one will probably settle, sooner rather than later.