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Summary:

A fuss over a girl-power video makes the Beastie Boys look like copyright bullies. Don’t judge too quickly — the case is not cut and dried, and the video maker’s own legal tactics leave something to be desired. UPDATED with Beastie Boys response.

Beastie Boys
photo: Beastie Boys

In an act of blatant hypocrisy, a legendary rap group is misusing copyright law to go after a clever viral video that celebrates girls who build machines instead of playing with teacups. Well, that’s the surface story at least — the facts are a little more complicated.

In case you missed it, the Hollywood Reporter reported on Friday that the Beastie Boys are threatening to take legal action over a video set to their 1986 song “Girls.” The video, which shows little girls who build a Rube Goldberg-type machine, replaces sexist lyrics like “Girls — to do the dishes/ Girls — to clean up my room/” with empowering words like “Girls — to build the spaceship/ Girls — to code the new app.”

The maker of the video, GoldieBlox, says the video is a parody and is protected under fair use, but that lawyers for the Beastie Boys and the band’s record label have told them the the video is a “big problem” that has a “very significant impact.”

The case has all the makings of a David and Goliath story, and everyone from the media to advocacy groups like the Electronic Frontier Foundation have rushed to defend the video, and decry the Beastie Boys as copyright bullies and hypocrites (the rap group has long been an aggressive advocate of fair use).

The pile-on is premature, however, and the legal issues are hardly cut and dry. For starters, the Beastie Boys, who have yet to offer their side of the story, have not sued anyone: the case is in court because GoldieBlox is asking a judge to declare they are doing nothing wrong.

[Update: the Beastie Boys have published an open letter that states in part: "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."]

As the band states, the video itself is not a simple parody. GoldieBlox is a toy maker and its video is not just social commentary, but an ad to help the company sell toys. Keep in mind that, in the ordinary course of things, a company that wants to use a popular song for marketing (especially a full 2 minutes of it), has to get a license from the songwriters to do so.

Finally, it looks like the Beastie Boys aren’t the only ones with over-reaching lawyers. A quick visit to GoldieBlox’s website reveals terms of service that are about as reasonable as the Spanish Inquisition; the terms includes gems like this one:

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to GoldieBlox, [..] (c) the links and the content on your website do not portray GoldieBlox or its products or services in a false, misleading, derogatory, or otherwise offensive matter,

Got that? In this view, it’s illegal to use a link like this one to suggest, for instance, that GoldieBlox’s lawyers are a bunch of bloviating, over-zealous hypocrites.

The point here is that the copyright case is not cut and dried. And on a moral level, the Beastie Boys (if they even knew about their lawyers’ actions) are hardly on the same plane as the bottom-feeding “sample troll” that just filed a copyright lawsuit against Jay-Z, and against the Beasties themselves on the day of band member MCA’s premature death.

As for whether the girl-power video is fair use, it’s hard to say — my own two cents is that the four-part test could go either way. Happily, we are unlikely to find out. It would be foolish for PR reasons for the Beastie Boys to press a case against a video that, even if it is marketing, delivers an inspiring and positive message to little girls everywhere.

At the same time, the Beastie Boys themselves long-ago eschewed the sort of beer-swilling sexism of their debut album, and became advocates for women amidst a general hip-hop climate of misogyny. Indeed, when band member MCA died last year, his death was marked by articles like “MCA’s Feminist Legacy.”

The bottom line here is that the Beastie Boys will likely pour a bucket of cold water over their lawyers. Let’s hope that GoldieBlox is willing to do the same, and resolve this dispute without smearing a band that deserves the benefit of the doubt. Here’s a copy of the video:

  1. Shawn Rutherford Monday, November 25, 2013

    Biased article clearly shows author’s ignorance of copyright law. Short clips of a song do not equal completely copying an entire song.

    The issue is not about the little girls (actors) in the video but the grown adults who wrote/shot/edited the video.

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    1. Shawn, can you please set out your argument rather than just taking pot shots? I don’t follow what you mean..

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  2. I would think that if the song is a parody and it is also being used to market products they toy company should fork over some digital dollars to the Beastie Boys. If it’s just a parody no bitcoins should be exchanged.

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  3. Marcel McNicoll Monday, November 25, 2013

    After the Supreme Court has decried that Corporations are people, I guest the next logical step is to have profit driven company uses entire songs for marketing purpose (however cute are they) under the fair usage clause… Good grief!

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    1. Parody is not ‘using the entire song.’

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  4. Even though I am a passionate advocate for fair use / fair dealing in this case it does seem that the company is using the parody exemption to avoid paying a royalty. Since advertisers are increasingly putting a social spin on their campaigns (e.g. Dove Real Beauty), they should not use positive messages as a shield. It’s still marketing for a product designed to generate a profit for the company.

    I think there is an easy solution here though. If GoldieBlox donates an appropriate amount of their profits from this toy to a charity that empowers young girls, then Beastie Boys should take the high road, but perhaps still have their lawyers draft a contract licensing the use for free but conditional on a percentage of proceeds continuing to be donated.

    If GoldieBlox does not donate a portion of proceeds and is not willing to do so, then they should pay a royalty to Beastie Boys, and the Beastie Boys should in turn donate it to a charitable organization.

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    1. +1

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    2. This seems to be a common thread, that the use in an ad somehow means fair use doesn’t apply, but it is a mistake. Parody is at the very core of what fair use us supposed to protect and the use in an ad doesn’t change that parody is fair use. The fact that it’s an ad doesn’t matter.

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  5. Some example for little girls: Rip off other people’s melodies and ideas for your own for-profit company. No, Beastie Boys are right and this company wrong.

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  6. The Beastie Boys are coming out with a new product line for Hanukkah – HornieBox & The Spinning Sex Machine – An award-winning debut story, HornieBox builds a spinning sex machine to help her dog, Lame O, chase some tail. Soon all her friends want in on the action. Help HornieBox build a belt drive spinning sex machine for everybody! A book series plus construction set starring HornieBox, the girl sex toy inventor.

    Comes equipped with 16 design ideas and unlimited penetrating possibilities.

    THIS IS WHAT PARODY LOOKS LIKE

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  7. i agree that the four prong campbell test can go either way… but there’s way more to this than copyright and fair use. goldieblox slapped the beastie boy name on the title of their video on youtube, suggesting the beastie’s approved or the use. this would seem to be a lanham act violation (and possibly right of publicity, UBTPA in CA).
    i noted that the EFF lawyer went to stanford, same school as the CEO of goldieblox. and that neither she, nor the team at orrick representing goldieblox seem to understand that the song “girls” was itself a parody of misogynist hip hop culture.
    ultimately the court will decide the issues of law, but this one is a public relations nightmare for goldieblox. they just look like a bunch of silicon valley money grubbing pseudo feminists packaging erektor sets in pink boxes to upsell them.

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  8. Interesting. Did the Beastie Boys copyright infringe the song from the Isley Brothers?? https://soundcloud.com/itshard2bgod/beastie-boys-vs-isley-brothers

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  9. Come on, do they really think they can get away with not paying royalties on that?
    Why would they go through all this trouble. They should just spend more time on doing things correctly. They should just make some sort of deal and move on with running their company. This makes me think they’re just dragging this thing out for publicity….

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  10. Whether the marketing delivers a powerful message to little girls everywhere or calls for the extermination of a race is irrelevant to if it’s a parody or not, and I’m not so sure that the four part test could go either way. I will agree that it’s transformative, but the work taken isn’t educational, the amount taken is the entire song (music score), and the effect of the upon the potential market is that everyone suddenly hates the Beastie Boys for putting out an album full of parody and satirical songs decades ago It’s tarnished their image and entire legacy, painting a pro-feminist group as a misogynist one.
    Aside from the law, it’s a shitty thing to do too.

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