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Summary:

What has gotten lost in the Beastie Boys vs. GoldieBlox hysteria is that fair use is an important principle when it comes to copyright, and we would be better off as a society if we supported it rather than chipping away at its effectiveness

The tangled story of GoldieBlox — a startup that makes empowering toys for young girls — and the hip-hop group The Beastie Boys took another twist late Tuesday, when the company removed a video it had made that contained a parody of the Beasties’ classic song “Girls” and replaced it with one that had no reference to the Beasties whatsoever. GoldieBlox’s founders also posted a letter of apology to the band, saying they were fans and that they never intended any harm.

Copyright fans — and some Beastie Boys fans — will no doubt see GoldieBlox’s decision to remove the video as a huge victory. To them, it was a shameless and commercial ripoff of the band’s copyrighted content, and a slap in the face to deceased Beastie Boy Adam “MCA” Yauch, who specifically stated that he didn’t want the band’s music to be used in advertising.

But for me, the incident is just another sign of how inadequate modern copyright law is when it comes to the kinds of content we see online every day: mashups and remixes and parodies and other aspects of what Lawrence Lessig has called “Remix Culture.” GoldieBlox may not be a great example of the benefits of this phenomenon, but I would argue that there are many, and we are at risk of losing them as “copyright maximalists” chip away at the concept of fair use.

Fair use is a principle worth defending

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According to one version of the Beasties vs. GoldieBlox story, the “fair use” claim GoldieBlox made was just a cynical attempt to get cheap publicity out of the incident, an attempt that was likely doomed to failure anyway because “fair use” shouldn’t apply to commercial content. As evidence, critics of the company point out that GoldieBlox launched a pre-emptive lawsuit against the band, who wrote a letter protesting that they never did anything to trigger such behavior (although it seems their lawyers did).

But can GoldieBlox be blamed for jumping the gun and asking the court to rule that its video was fair use? I don’t think so. A threatening letter from lawyers for a music group or artist is likely to strike fear into the hearts of anyone, because the vast majority of such cases result in a victory for the copyright holder — even when it’s an almost farcical case like the one Prince launched against a woman whose child was dancing to his song in a YouTube video.

And as Andy Baio and the Electronic Frontier Foundation and lawyer-turned-entrepreneur Rachel Sklar and a number of other experts have all pointed out, GoldieBlox actually had a fairly compelling fair-use case, despite the fact that it was a commercial for a product — a case we will now never get to hear because presumably they decided it wasn’t worth it to fight. As Baio noted:

“It’s entirely possible that the Goldieblox video is simultaneously: A parody, an advertisement, a derivative of the Beastie Boys’ copyrighted work, a violation of MCA’s dying wishes — and yet, perfectly legal under the fair use doctrine.”

Although many people who have debated the issue with me on Twitter over the past few days seem to see “fair use” as some kind of scam, where people get to “steal” the content created by hard-working artists, the principle behind it strikes right at the heart of what copyright law was originally intended to do — which is to encourage the creation of new art and new art forms, by allowing existing art to be used in a multitude of different ways.

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Contrary to what many people seem to think, copyright wasn’t designed to allow Prince to terrorize some poor woman who uploaded a YouTube video of her son dancing — or to prevent Andy Baio from creating new art for his “Kind of Bloop” project, or to generate a life-long income stream for artists like Leiber and Stoller and all their descendants based on five songs they wrote in the 1950s, or to enable Warner Brothers to make millions of dollars whenever someone sings “Happy Birthday.”

Maybe GoldieBlox isn’t the best example of what fair use allows, or should allow. But fair use exists (or “fair dealing,” as it’s called in Canada and Great Britain), and it deserves to be protected, even if the law itself is so darn complex that no one can agree on what it is supposed to mean.

Are we better off when record labels and their lawyers can prevent artists from using even short clips in remixes, or from creating parodies? I don’t think so. How many potential musical or artistic innovations like hip hop — which featured artists like The Beastie Boys “ripping off” dozens of songs in order to create something new — have been smothered because someone couldn’t afford to licence the content they wanted, or was afraid they would get sued?

Here’s a proposal: Instead of requiring a user like GoldieBlox to prove fair use, what if fair use was assumed, the same way that accused criminals are innocent until proven guilty? We might wind up with a lot of infringement (which we already have) — but maybe some rightsholders would think twice about launching a lawsuit over a use they didn’t agree with.

Further reading: If you’re interested in how the use of sampled songs in hip hop — the kind the Beastie Boys engaged in for their seminal 1989 album Paul’s Boutique — has changed since the group recorded that album, this post from Matthew Yglesias at Slate is a good overview. The band is still fighting a lawsuit that has been going on for years related to their sampling for that record.

And if you are interested in the history of the “fair use” principle and copyright law, this research paper looks at how it developed — and how fair use was actually a kind of release valve created by the courts after they massively expanded the copyright system to make almost any kind of use an infringement. Until the landmark Folsom vs. Marsh case in 1841, everything other than outright 100-percent copying of a work was considered to be legal.

Post and thumbnail photos courtesy of Flickr users Hans Gerwitz as well as Shutterstock / spaxiax

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  1. You make an excellent case, but you are assuming that the laws and therefore the government, particularly the US Government, represent the people.

    And it is clear that nothing could be farther from the truth,

  2. totally wrong argument.
    pander to your currently employed readers…
    until the copybot comes for their wallets.

  3. While I agree that the GoldieBlox situation was indeed Fair Use as defined by U.S. law, I’m more concerned about a copyright holder simply maintaining the right to decide *how* or if their work is used. What if, as an example, a republican decided to create their own commercial with a similar reworking of a Beastie Boys song? Does the band have to simply accept it? Or should they have the right to keep their material from being associated with causes (or products), as they see fit?

    1. I think they definitely have that right when the song is being used verbatim — and they certainly have what some call “moral rights,” although the legal status of those is murky. But if the song is adapted or transformed in some way it’s a much harder call.

      1. I’m curious about whether this would bring in the point about how “fair use” affects the market for the original work. If Rush Limbaugh used a Beasties song to promote his program and purchases of Beasties music among current fans decreased (due to the association with Rush), would that be prohibited for its effect on the market?

        1. If Rush Limbaugh used a song without changing it in any way, that likely wouldn’t be seen as an example of fair use, since fair use implies some kind of “transformative use” that the original didn’t include.

          1. You seem to be ignoring (I assume deliberately) that a song isn’t a monolithic piece of IP. Changing the lyrics may be a “transformation” of the song, but the music behind the lyrics is still protected by its own copyright (as are the lyrics) and that copyright is absolutely being violated — even if a few notes are changed or different instruments/arrangements are used — when you simply overlay another set of lyrics on it. It is NOT up to the owner of the poached music to prove that it was used inappropriately, it’s up to the people who use the music without first seeking permission to prove that their use falls within fair use doctrine.

            1. Interesting burden of proof argument. I would think in a tort case as this would be BOP would be on the party filing suit, in this case GB. As it stands at this moment GB has filed suit and offered to drop said suit IF BB do not pursue it. Big if! And BOP is on GB to prove fair use. BB could just defend, or countersue proving the infringement. Fair use is based on four principles and it would be very interesting to see the arguments and court opinion.

  4. I think the Prince story is dead-on for the argument for fair use. GoldieBlox, not so much. Were they clever in re-appropriating the song? Sure. But it still boiled down to an implied endorsement in a commercial (absent any other information, one could reasonably assume that the Beastie Boys granted permission for the song’s use after seeing the ad).

  5. “Instead of requiring a user like GoldieBlox to prove fair use, what if fair use was assumed, the same way that accused criminals are innocent until proven guilty?”

    Oh how they laughed! at Disney Legal.

  6. You wouldn’t believe the amount of people defending Beastie Boys by default on the verge with this topic. It’s disgusting.

  7. I see no reason why the Beastie Boys should accommodate a company that wants to sell toys to children for profit.

    I’m for copyright so long as it has a reasonable sunset. If you wish to attack copyright problems you need to start with large entities like Disney first.

    Goldieblox tried to capitalize on a popular song to sell a product. I don’t think that’s covered as a parody nor do I think it’s fair use.

    1. Do you have any reason for thinking that it’s not fair use? I should point out that the term doesn’t mean the infringed creator sees it as fair — since that’s clearly not the case. Is it because it’s a commercial? Commercial uses have also been found to be fair use. Is it because the band didn’t want its songs used for ads? Also irrelevant for the purposes of the law.

      1. i’m pretty sure that 1, the copywrite for the song has to be filed “creative commons” in order for it to be hacked up and used in different ways by people who are not the Beastie Boys. Other copywrites they could have on the song would specify if and how exactly the song can be used.

        Parody will only protect you if you are using the it for educational or satirical purposes. You can also use the song if you are making a specific comment or review about the song itself.

        in many of the cases above, you still have to get permission from the copywrite holder to use the song, though the licensing fees are usually waived in the case of educational purposes.

        there is no “fair use” for advertising.

      2. I would say it is not fair use because they also put the name Beastie Boys in the title of the video. That would move in to the realm of endorsement. Had they not used the name in the title they would have a much stronger case for fair use.

        1. Here are the statutory requirements for fair use. It is not simple, there four factors and no weights attached. Judges have large amounts of leeway in how the factors are interpreted and weighed:

          ” 107. Limitations on exclusive rights: Fair use “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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 [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 7] 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.
          “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” 17 U.S.C. 107 (1988 ed. and Supp. IV).

  8. “GoldieBlox may not be a great example of the benefits of this phenomenon,” and therefore this article has no point, besides sucking clicks, at the cost of tarnishing this site’s credibility.

    1. Regardless of whether it is the best example possible — which it clearly isn’t — it is still fair use, which makes it worth writing about, especially since so many people seem convinced that it isn’t. Thanks for the comment.

  9. Don’t forget that GoldieBlox never had the courtesy to even ask the Beastie Boys if it would ok to use the song. Potentially, had they asked, who knows, the BBs might have been willing to work out an agreement. But to just use the song as they did, that suggests GoldieBlox ultimately is guilty of abusing the fair use provision for a shirt term marketing campaign that I think has arguably been highly successful. Likely this will not be the last marketing campaign we see in which copyrighted works are used, following by a mea culpa from the advertiser. GoldieBlox is not some innocent small business here. This was a shrewd marketing campaign that has helped them raise awareness and revenue.

    1. Open letter by Goldieblox is simply a cynical, passive-aggressive non-apology. Hope the Beastie Boys sue for the fair value of using the song and donate the winnings to an organization that truly works towards empowering young women. Goldieblox knew what they were doing when using the song to sell toys. As much as I agree with their message, I will never buy any of their toys for my daughters. Can’t support that kind of behavior.

  10. This article strikes me as a bit naïve, and one which is not particularly sensitive to the perspective of rights holders and creative professionals. (Remember we are talking about the advertisement of a commercial product here.) Disappointing on GigaOm, as I would have expected higher quality journalism on this topic. As a counterexample, I found this Reuters piece (which yes, differs in opinion from Ingram) to be quite a bit more nuanced: http://blogs.reuters.com/felix-salmon/2013/11/26/goldieblox-fair-use-and-the-cult-of-disruption/

    1. So by “higher quality journalism,” you mean a post that agrees with your opinion on the topic?

      1. I think by “high quality journalism,” rcrcr means a report that contains copy that is something other than (highly suspect) opinion. Y’know, actual journalism. Even JJR’s standards are higher, and he’s presumably edited by the same folks.

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