It was the ad video gone viral of three young girls proudly showing off their elaborate Rube Goldberg machine made of repurposed pink toys.  They sang “it’s time to change, we deserve to see a range” and called for girls “to code the new apps” and “to grow up knowing that they can engineer that.” GoldieBlox is a toy company started by Debbie Sterling, an engineering graduate of Stanford who noticed how deeply girls are underrepresented in that field.  Her startup company talks about “disrupting the pink aisle” and sells construction toys for girls.

How fitting, then, that they decided to borrow from the Beastie Boys’ 1987 song “Girls” to express this sentiment in their advertising.  All the lyrics in the ad are set to the catchy tune of “Girls” but replace the original lyrics that called for girls “to do the dishes” and “to clean up my room” and other such tasks.

Reportedly, the Beastie Boys wrote a letter to Goldieblox about the ad saying the video constitutes copyright infringement.  In a preemptive response, Goldieblox sued the Beastie Boys along with Island Def Jam Music Group, Rick Rubin and others in the Northern District of California seeking a declaratory judgment that their work does not infringe.  They argued that the work is a clear criticism and parody of the original, and should thus be covered by the fair use doctrine. Their complaint calls the Beastie Boys’ version “highly sexist” and states that the “specific goal of the parody is 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.”

A discussion of the fair use defense in this context would likely center on the first of the four factors of the fair use defense found in 17 U.S.C § 107:  “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Indeed, Goldieblox would likely have strong arguments that the purpose of the work is criticism and parody, looking to the Supreme Court decision in another parody song suit, Campbell v Acuff Rose Music, for guidance. There, 2 Live Crew’s rap version of Roy Orbison’s “Oh, Pretty Woman” was considered a fair use because it was a parody of the original. Despite the fact that there was a commercial element there, the Supreme Court found that “[t]he language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character.”

However, there are arguments circling on the other side as well, that the purpose here is really not criticism, but selling a product.  After all—this is not a commercial song, but a commercial advertisement.  And perhaps there are even arguments about the nature of parody itself, given that there are questions whether the Beastie Boys’ song was ever to be taken seriously anyway.  As put forth in an article in Salon, “[i]nstead of hiding behind the thoroughly lame excuse that ‘The song was sexist, ergo we can take it to sell our toys,’ GoldieBlox could instead put on its big girls pants and make something awesome now with its creative talent.”

GoldieBlox now appears to be backing down and endeavoring to do just that: focus instead on its products.

As reported here by Pitchfork, the two remaining members of the Beastie Boys, Adam Horovitz  (“Ad-Rock”) and Michael Diamond (“Mike D”), responded to the suit with a letter. It noted that they were “very impressed with the creativity and the message behind your ad,” but indicated “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.”

On November 27, GoldieBlox issued an open letter to the Beastie Boys, saying that while they believe the work is a fair use, they want to respect the wishes of the late Beastie Boys’ member, Adam Yauch, whose will reflects his request that his music never be used in advertisements. They said they would remove the video, that they are “huge fans,” and that they didn’t know about Yauch’s wishes.  It is nice to hear that this tale seems to heading toward a happy ending for the parties involved.  Though it appears, then, that there may be no legal battle on the issue of fair use.

Until next time . . .