The Parody of Taking Sides (Update)

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.

 

13 comments on “The Parody of Taking Sides (Update)

    1. SHG Post author

      Is that what it “boils down” to? My preference is that my argument not be boiled down, but then, I’m not married to the outcome.

      1. Max Kennerly

        I’m happy to see this particular ox gored, but I’m less married to the outcome than you are. “[A]ny interpretation of the song as parody is a facile effort to justify the theft of the music based on favoring political correctness”? C’mon. That’s your feminism-makes-me-insecure gland talking again.

        Stick to the facts: commercial purpose is merely a factor (one at play in all the major cases on this, including Campbell), and the work is otherwise far more a genuine parody than the crude rap in Campbell. Add to that the minimal originality of “Girls” — the melody is just The Isley Brothers’ “Shout,” The Beastie Boys’ contribution was primarily the lyrics — and you have a far stronger case than Campbell.

        If someone took Aretha Franklin’s “Respect,” rewrote it as an ode to manipulating women into sex, re-recorded it, and used it to sell beer, I’d be appalled and urging a boycott, but I’d have the same conclusion vis-a-vis fair use. Heck, that’s not too far off from the facts of Campbell.

        1. SHG Post author

          Sometimes, you write things that reflects lawyerly thought. Sometimes, you make no sense at all and I have to decide whether to read it again and again just to make sure I haven’t missed anything that remotely reflects thought. But then, it’s really not worth the effort. If you want to be taken seriously, then try harder to make sense.

  1. Fubar

    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 developes 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. …

    Don’t be blinded by messages you like when you decide which side to take.

    Yes, the GoldieBlox and Beasty Boys civil flap is an excellent vehicle for safari into the miasmal and cratered no man’s land between criminal law and justice.

    The perceptual lacuna when we “pick sides for the wrong reasons” is often failure to understand that application of law is inherently deductive: if act A, then legal result B follows. But we “pick sides” inductively: If legal result B, then surely the law must be intended only to apply to act A if act A is badly intended, and not to this well intentioned instance of it.

    I know no certain means to prevent seepage of injustice into law, or to prevent misperception of justice as mere law. Even the best intentioned and skillful legislators cannot draft statutes that guarantee justice always.

    Only sometimes can a well intentioned and skilled judiciary largely mitigate or prevent terribly unjust but perfectly legal outcomes. Jesus and the woman taken in adultery comes to mind. There are many examples from many religions. But just as we can’t expect legislatures to be Plato’s Symposium, we can’t expect the judiciary to consist of Jesus, Lao Tze, Gautama Buddha and Hillel.

    Like Eliot’s hippopotamus we can only rest our bellies in the mud of law. Unlike that fictitious beast it’s not so easy for us to take wing and ascend from the damp savannas to reach the sweet fruit of justice. So your plea against blindness is particulary poignant. If we can’t reach the mango on the mango tree, we at least can damned well see it if we choose.

    I plead nolo contendre to mixing more metaphors than the law allows into this mess of pottage. In mitigation, today is Black Friday after all.

  2. Jim Tyre

    Scott,

    A couple of quick points. The proper place of Campbell in the discussion is a bit different than what most have said. When the initial stories began appearing, there was a chorus of folks saying that what GoldieBlox did could not be fair use because of the commercial nature. Campbell disposes of that argument handily, but no more. A proper fair use analysis is almost always highly fact intensive, Campbell simply establishes that the fact that this was a commercial use is not dispositive.

    Second, though it may well be that the DJ action will be dismissed, soon, it has not yet been dismissed. The most recent filings were notices of appearances by the attorneys for the DJ defendants.

    1. SHG Post author

      That’s exactly my understanding of the law and the applicability of Campbell, and the weighing of the factors remains at stake.

      As for the DJ action, somebody is going to look awfully bad if they don’t dismiss pretty quickly.

      1. Jim Tyre

        The open letter on the GoldieBlox blog included a condition:

        “Since actions speak louder than words, 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.”

        I have no inside knowledge. But I wonder whether the DJ defendants have not agreed to that condition.

    2. UltravioletAdmin

      Speaking of the fact intensive analysis, people tend to get held up on transformative use and commercial use. The Displacement factor is the interesting one here, as the Beastie Boys were frank about not wanting to license it, or being very proud of it. And this also tends to be the expensive factor to prove, since often you need to show the effect on the market for the song.

      1. SHG Post author

        Like the other factors, market for the song is just one. For example, I don’t sell access here, so I make no money off what I write. Does that mean anyone can just take it and use it for their own? I think not. And when people try (and they have), I tend to be unkind about it.

  3. Andrew

    As a policy matter, what exactly does commercial mean? I know what it means, but when, say, SNL does satire, aren’t they making money (indirectly, through advertising). When the onion satirizes someone’s intellectual property, don’t they make money off that too?

    Or is an SNL skit or Onion article ok because the satire qua satire is the “product” and not being used to sell something else?

    I think what I got from your post is that there are very persuasive arguments on both ends. I don’t see how requiring a company likecGoldiBlox to pay licensing fees would chill speech or satire or fair use.

    1. SHG Post author

      Most parodies have a commercial component to them, whether it involves selling songs, or television commercials, or click ads. And to the extent that carries weight, it’s factored into the analysis. But some commercial uses are more direct, fundamental and, in this instance perhaps, the primary purpose, which is to use it to sell products and nothing more. It carries greater weight.

      If the parody component is very strong as well, it may be sufficient to offset the direct commercial purpose, but whether this is truly parody rather than facile marketing is also in issue. So you understood the issues quite correctly, and this is by no means a slam dunk.

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