Commentary
Beastie Boys Demand GoldieBlox Pay For Parody Ad
- by Wendy Davis , Staff Writer @wendyndavis, December 11, 2013
“Unfortunately, rather than developing an original advertising campaign to inspire its customers to create and innovate, GoldieBlox has instead developed an advertising campaign that condones and encourages stealing from others,” the Beastie Boys allege in a papers filed today in U.S. District Court in Oakland, Calif.
The musicians say that their copyright was infringed by GoldieBlox. They are seeking to recover any profits that GoldieBlox gleaned from the song, as well as statutory damages -- which can run as high as $150,000. The Beastie Boys also are seeking a court order banning GoldieBlox from using the group's music in its ad.
The Beastie Boys add that they only learned of the clip after an ad agency representative inquired about whether the musicians had licensed the song. The Beastie Boys allege that the agency did so because it was attempting to enter the ad in a contest to win a 30-second Super Bowl spot.
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The battle centers on a GoldieBlox ad that uses music from the Beastie Boys' song “Girls,” but with different lyrics. Among other changes, the GoldieBlox version replaces “Girls to do the dishes/Girls to clean up my room,” with “Girls build a spaceship/Girls code the new app.”
Late last month, GoldieBlox went to court to seek a declaratory judgment that the clip was protected by fair use. The company said it did so after receiving “threats that we took very seriously” from the Beastie Boys' lawyers.
Many observers thought GoldieBlox had a point, given that the ad clearly was a parody. But not everyone thought the toy company was on solid legal ground. Santa Clara University law professor Eric Goldman told MediaPost that GoldieBlox's argument for fair use was weak, given that the company used the song in an ad. “They used the music for an extended period of time in an advertisement, without paying for it,” he said last month. “You can't do that.”
For its part, GoldieBlox took down the video several days after filing suit. “We don’t want to fight with you,” company execs said in a letter to the Beastie Boys. “When we made our parody version of your song, ‘Girls’, we did it with the best of intentions. We wanted to take a song we weren’t too proud of, and transform it into a powerful anthem for girls.”
Even though the company removed the clip, GoldieBlox is continuing to pursue its argument that the ad is protected by fair use principles.
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
That's kind of funny considering that the vast majority of the music they put out simply stole from what the black hip hop artists had already been doing for years.
Use of a parody in an ad does not negate the fair use doctrine. When Everready sued Coors over its use of Leslie Nielsen in a pink bunny suit (doing a parody of Everready's own parodies of other commercials), the court said that it was a reasonable parody given that, "Mr. Nielsen is not a toy, and does not run on batteries." And also, if the clip is in the 30-second range, it may be taken to be within the range of fair use, since it gives just enough to let the listener recognize that it's poking fun at the original work, but not so much that it would substitute for the original work. This was the argument the court used in Fisher v. Dees, where the use of the original music from "When Sonny Gets Blue," by Rick Dees to uphold a parody defense for a song "When Sonny Sniffs Glue." I think given these factors the courts will probably side with GoldieBlox on this.
The use of the song goes beyond simply doing a parody, but touches on replying to one semi-political statement; misogyny, with another; the power of women. It could be argued that GoldiBlox had no choice but to use the actual Beastie Boys song, since it was a reply. Hoist on their own petard, so to speak.