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
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.
Copyright was meant to encourage new art
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.