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.
Congratulations to client V. Contreras on the release of her music video for "Lush," currently #9 on the ReverbNation pop charts for Seattle. Tickets are near sold out for her May 3rd album preview show at the Triple Door. Described as the "love child of Dusty Springfield and Nancy Sinatra with a splash of The Ronettes," her sound is both nostalgic, yet modern and distinctive. Check it out:
When a good faith user wants to license a copyrighted work but cannot locate the owner, the work is considered to be an “orphan work.” While there are provisions in the Copyright Act that would allow for use of an orphan work under some circumstances (such as §107 (fair use), §108(h) (use by libraries during the last twenty years of the copyright term), and §115(b) (statutory licenses for musical works, discussed in my previous post here), these existing provisions do not address the majority of orphan work situations. The result is that good faith users are unable to legally license millions of copyrighted works. This unfortunate result is antithetical to the purpose of copyright law - which should be to promote the progress of science and the arts.
The orphan works problem is a by-product of a series of changes in the copyright laws that eliminated previous requirements that copyright owners publish, register, renew, and attach copyright notices to their works in order to receive copyright protection. One of the most common misconceptions I frequently hear from clients is that the law requires affirmative actions by the owner (such as registration or affixing copyright notices) in order to protect a copyright – but in fact, the only thing that an owner must do to own a copyright is to create something original, fixed in a tangible medium. There are additional benefits conferred to a copyright owner upon timely registration, such as the potential recovery of statutory damages and attorneys’ fees in an infringement suit. However, registration isn’t required in order for a copyright to be valid.
The problem that arises when copyright owners aren’t required to register copyrights or to attach notice of their claim to ownership is that many copyright owners go missing. According to the Copyright Office, this orphan works problem is especially pervasive for photographs, but it also arises frequently with other types of works, such as books and musical works.
Previous attempts at legislation attempted to strike a balance between the rights of copyright holders and good faith users by allowing use of an orphan work as long as the user made a “reasonably diligent effort” to locate the copyright owner. In the event the owner came forward at a later date, the remedies would be limited to payment of “reasonable compensation” for use of the work. The proposed legislation was ultimately unsuccessful, so Congress at the early proposal stages did not specify what would constitute a “diligent effort” to locate the owner (i.e., what technology and/or search practices should be used); or how “reasonable compensation” would be determined (i.e., whether by mutual agreement, or a license fee determined by a court or by statute).
The Copyright Office is currently accepting comments from interested parties regarding the problem of orphan works, in preparation for a recommendation to Congress for proposed legislation. Comments may be submitted until March 6, 2013.
The above advertisement was originally published in the New York Clipper in 1906.
Can a songwriter prevent other musicians from recording cover versions of the songwriter's original compositions?
The short answer, is no. To begin, it's important to first distinguish between the two separate copyrights in music: 1) the copyright in the underlying composition; and 2) the copyright in the actual sound recording. Although artists can refuse to license the use of their recordings, they cannot prevent others from recording cover versions of the underlying compositions. Under Section 115 of the Copyright Act, the licensing of copyrighted compositions is compulsory, as long as the artist recording the cover pays the original artist a mechanical license fee.
However, if the original songwriter refuses to grant a license, the Copyright Act allows the covering artist to obtain a compulsory mechanical license, provided that the covering artist gives the original songwriter notice of the covering artist's intent to obtain the compulsory license, and pays a mechanical license fee to the original songwriter at the statutory rate.