GoldieBlox's two-minute ad uses music from the Beastie Boys' song “Girls,” but with new lyrics. For instance, the GoldieBlox version replaces a verse about housekeeping (“Girls to do the dishes, Girls to clean up my room”), with lyrics about engineering (“Girls build a spaceship, Girls code the new app”).
GoldieBlox calls the ad a parody, saying in court papers filed in the Northern District of California that the clip shows “three diverse girls rejecting stereotypical play as princesses with tiaras, and instead creating a highly creative and complex Rube Goldberg mechanism throughout multiple rooms and the yard of one of their homes.”
The company adds that it created the ad “with specific goals to make fun of 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, particularly in the fields of science, technology, engineering and math.”
GoldieBlox contends the ad is protected by fair use principles. The company says in its complaint that it went to court because the Beastie Boys “lashed out and accused GoldieBlox of copyright infringement.”
For its part, the Beastie Boys said Monday in an open letter that it doesn't allow its songs to be used in ads. “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,” the group's surviving members, Mike D and Ad-Rock, write. The will of Beastie Boy member Adam (“MCA”) Yauch, who died last year, specifies that the group's songs can't be used in ads.
The digital rights group Electronic Frontier Foundation sides with GoldieBlox, arguing that the clip is a fair use. “It serves the public interest by advancing political criticism and debate regarding sexist stereotypes about girls and engineering,” EFF attorney Corynne McSherry writes. “What is more, it’s a classic example of growing the cultural commons by remaking existing cultural works to create new insights and expression. That kind of creativity what fair use is for. And it’s part of what made the Beastie Boys great.”
But not everyone agrees with that analysis. Santa Clara University law professor Eric Goldman says it's extremely rare for courts to side with advertisers in copyright disputes centered on fair use. He adds that GoldieBlox has an especially weak argument because it used two minutes of the music -- which is around the length of the original song.
“It seems like a pretty easy case to me,” Goldman says. “They used the music for an extended period of time in an advertisement, without paying for it. You can't do that.”
He adds: “In an advertisement, the rules are always stacked against the advertiser.”