The heyday of the Beastie Boys came well after my music appreciation days waned. But apparently they had some misogynistic song about girls back then which now embarrasses them. Punk rock had a way of doing that, songs that shocked in ways that should remind everyone writing today that their words will still be around later when they’ve grown up.
Thirty years later, GoldieBlox stole the song, put its own lyrics to it so that it could use it in a commercial to sell stuff to girls. There was a video of it available when it happened, but it’s since been removed. Not because the song was pretty awful, both in the first place and the remake, and not even because the Beastie Boys were particularly beastie in demanding that GoldieBlox not use their song.
The band did ask that the song be removed because, they say, they never wanted their music used in commercials, but GoldieBlox went the declaratory judgment route to protect what they called a parody under the Fair Use Doctrine. It generated a good deal of commentary about what constituted lawful fair use as oppose to unlawful copyright infringement.
The commentary ranged from those knowledgeable about First Amendment law to those who couldn’t tell fair use from their elbow, and voices in between. But they all took the side that a song, taken without asking and changing the words so it would make a marketer blush, was a parody and thus entitled to be used to sell tchotchkes to young ladies.
And so the Beastie Boys, who wrote and recorded the original song, returned to their roots as bad boys according to Ken White:
The Beastie Boys are playing wounded innocence:
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.
Awwww. The Beastie Boys may be using this as a continuation of the “sorry for being douchebags” tour. Goldieblox may be using it for very clever pre-Black-Friday self-promotion. But the core issue is interesting.
The song is clearly a gleeful parody of the Beastie Boys’ lyrics, which display typical and banal sexism.
When someone says clearly, that’s either the end of discussion or a good reason to doubt. According to Max Kennerly, the issue was resolved by a Supreme Court decision “directly on point,” Campbell v. Acuff-Rose Music, Inc., either ignoring or oblivious to why the two cases were nothing alike.
Section 107 of the Copyright Law provides four considerations for fair use:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Everybody seemed to take for granted that this was parody, like 2 Live Crew’s remake of Roy Orbison’s “Oh, Pretty Woman” in Campbell, or any song ever done by Weird Al Yankovic. Kennerly seemed frank about why he leaped to the conclusion.
On that album was a short, repetitive, misogynistic track titled “Girls,” a track hated by a large swath of society, including, apparently, some of the band members. The Beastie Boys never played it live, and Adam “MCA” Yauch subsequently apologized for the insulting and bigoted content on the album….
It was thus deeply satisfying to see GoldieBlox, the makers of a science-based toy for girls, repurpose the song as a girls-empowerment theme….
He hated the original and loved the “repurposed” version as a “girls-empowerment theme.” What followed was justification for things he liked versus things he didn’t.
Missing from the discussion was that this was indeed repurposed: it was the music for a commercial advertisement to sell stuff. New lyrics were applied to someone else’s song that would make it usable for a commercial. And if GoldieBlox wasn’t in the business of selling stuff to girls, they wouldn’t have repurposed the song. They aren’t in the “girl-empowerment” biz; they are in the biz of selling crap to girls under the marketing ploy of “girl-empowerment.”
And under fair use, it’s hardly clear that businesses are entitled to steal songs from others so they can sell tchotchkes to girls.
This has a close connection with how laws are interpreted when criminal defendants are hated, when we don’t mind so much that courts are unfair or harsh, because we hate the defendants too. It’s only when the same law that develops for hated defendants is applied to people we don’t hate nearly as much that we start to scream, “how could that happen!” It happens because we pick sides for the wrong reasons.
Whether or not GoldieBlox’s use of the song was fair use is anything but clear. My view is that its commercial purpose outweighs any claim to it being parody. In fact, I seriously doubt whether it was parody at all, and any interpretation of the song as parody is a facile effort to justify the theft of the music based on favoring political correctness.
Fortunately, no harm will come of this blind punching match, as GoldieBlox withdrew its DJ action, pulled the video and apologized for its conduct.
As Mathew Ingram notes, fair use is something worth fighting for, and while Goldieblox made the reasonable decision not to continue this fight, we should be extremely wary of attempts to shut down and close off fair use for the sake of both our culture and innovation.
Ingram is absolutely right. Fair use is worth fighting for. And commercial misappropriation is worth fighting against. Don’t be blinded by messages you like when you decide which side to take.
Update: Despite the twists and turns, love and hate, sturm und drang, the case has not been withdrawn by Goldieblox, and the Beatie Boys have answered the complaint and interposed the counterclaims available to them. Protip: Make sure the copy you file with ECF isn’t the redline version, big boys. Girls love red.