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Beastie Boys countersue as fair use fight over “Girls” song escalates

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A copyright case between the Beastie Boys and toy maker GoldieBlox just got nastier: the rap group claims in a court filing that rewriting its “Girls” song for a video commercial does not count as “fair use,” and says  GoldieBlox must hand over the profits it earned from using the song without permission.

If you missed it, the controversy started two weeks ago after GoldieBlox rewrote the song “Girls,” a catchy but debatably sexist (see comments below) Beastie Boys tune from 1986, with empowering new lyrics as part of a video that celebrates girls who build things — but a video that is also clearly a commercial for GoldieBlox toys.

When news of the lawsuit broke out in November, many rushed to defend GoldieBlox as the underdog in a classic David and Goliath case. But when more details emerged, some (including me) suggested the toy maker had drummed up the legal fuss as part of a cynical campaign to goose sales before the Thanksgiving shopping season. The lawsuit also led to intense debate about whether GoldieBlox’s use of the song qualifies as “fair use” — a legal rule that allows people to use copyrighted work for parody, news reporting or other uses that meet a four-part test.

The Beastie Boys counterclaim, filed Tuesday in New York, says the”Girls” video was not fair use, and that the toy maker is liable for copyright and trademark infringement among other things. In its filing, the band also says GoldieBlox has a history of turning the works of popular musicians, including Queen and Daft Punk, into commercial jingles without permission.

As for background, the Beastie Boys say they learned of GoldieBlox’s activity only when an ad agency asked about submitting the ad for a SuperBowl contest; when the band’s lawyers contacted GoldieBlox, the toy maker sued them (using a gold-plated Silicon Valley law firm) the very same day.

The fair use question is not an easy one: while GoldieBlox may have acted cynically and for commercial purposes, the video may qualify as fair use all the same. In any case, the company is probably  laughing all the way to bank if, as the Beastie Boys claim, its version of the “Girls” video saw 8 million YouTube views and its products enjoyed a “massive increase” in sales (even though the toys are receiving poor reviews).

The Beastie Boys want profits, damages, lawyers’ fees and more; the band also wants an injunction to prevent Goldieblox from using the song. If you like this stuff, you can read the claim for yourself below (I’ve underlined some of the important bits).

Beastie Boys Response to GoldieBlox

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25 Responses to “Beastie Boys countersue as fair use fight over “Girls” song escalates”

  1. Shawn Rutherford

    To understand the ramifications of this situation, you have to understand that, at the time, one could sample a certain number of seconds of a musical performance without getting massively sued. The rulings back in the 80’s also applied to radio stations that would use musical performances in commercials, promo’s, etc. A “needle drop” for a few seconds wouldn’t cost you anything but if the performance of a song, on air, of a certain measure of time, WOULD cost you fees to ASCAP/BMI.

    I am not a lawyer but was in radio/TV for 27 years. The problem here is that the rules were vague on this new form of music, back in the 80’s, and the Beastie Boys created their music under those laws whereas GoldieBlox must comply to current laws.

    just my two cents.

  2. CommentPerson

    Did anyone in the comments actually go listen to the video? They didn’t just play the original Girls song with changed lyrics, the whole sound is different. While there may be some technical copying (e.g. melody) according to precedent, it does not sound like the same song. GoldieBlox clearly extended and enhanced it, not just directly copied it. When I watched the video for the first time, I didn’t notice the melody was the same and certainly didn’t associate it with the Beastie Boys.

    nam2 is completely right though, it’s silly there is even a copyright on a song from 1987. When Congress passed the first copyright act in 1790, the term was 30 years. That’s in a world where information spread at the speed of horseback or foot. It was unlikely someone from a Southern colony would ever have heard a band from the North play their own copyrighted song before the term expired.

    Today everyone can listen to, and purchase, a song anywhere in the world literally the second it’s released. I don’t know the figures, but I’d assume on the consumer side of song sales, a significant majority of the revenue is generated in the first year. Certainly the first 5 or 10 years. What percent of profits are left for the Beastie Boys at this point? 2% 5%? Whatever it is, it’s not enough to justify holding an idea hostage. When creative people have more material to work with, they will create more and better output, which is good for consumers and for artists.

    I recommend watching the “Everything is a Remix” video series which discusses this.

    • I really disagree with your sentiment that the sound is different. They even made an effort to mirror the song structure, even with the shortened commercial. Particularly the ending bit, w here the instrumental tempo picks up. They mirrored it in their ‘parody’ (of a parody).

  3. After 20 years they shouldn’t even have a copyright anymore. Who the hell gets to retire on something they did in their 20’s? Someone else needs to put food on the table and feed their own kids with a new product. If they need to use a 20 year old song, then they should be allowed to.

    It’s not like the Beasties are still touring THAT album. Everyone’s moved on. The entertainment industry needs a severe haircut from congress.

    And to effing bad your will said you don’t want people to use your songs for entertainment. Then you shouldn’t have used your songs for monetary gain. I didn’t see the Beastie’s charging $5 a person when they were younger. They charged top dollar.

  4. They seemed to have fired Orrick for Durie Tangri, which is interesting. They fired Orrick when they initially said they were planning to drop the lawsuit (11/27). I would hypothesize that perhaps they were upset with Orrick for possibly helping them come up with the idea to sue in the first place.

  5. Fair use under common law means you share any gains from that use and use it for its originally intended purposes. The changing of words of a creative piece to fit a marketing angle is not fair use, its pimping creativity. Ask permission first, that is common courtesy. I’d curse now, but y throw that into the graphing structure fodder?!

  6. In 1999 the Beastie Boys wrote a letter to Time Out New York apologizing for their early lyrics, which the band came to find offensive later in life.
    They wrote: “There are no excuses. But time has healed our stupidity. … We hope that you’ll accept this long overdue apology.”

    The Beasties also went on to write the song Sure Shot w/ lyrics:
    “I want to say a little something that’s long overdue/The disrespect to women has got to be through/To all the mothers and sisters and wives and friends/I want to offer my love and respect to the end.”

    Like the Beasties said, there is no excuse for the offensive lyrics, but it should be noted, the band released their first album in the late 80s, when the members were in their early 20s. The critique the GoldieBlox ad was trying to make is one the band itself made nearly 15 years ago and has tried to atone for.

    Taking a shot at the Beastie Boys seems like a meaningless excuse to use their catchy song.

    The other frustrating point of this story is the late Adam Yauch’s will, which leaves instructions that his music never be used in advertisements. That is rock and roll and it should be respected.

    With love and friendship,

    • thanks for your comment Jim Jeffries.. I like the song, but I think it’s hard not to describe it as sexist (“girls to do the dishes, etc) .. It’s kind of ironic though as, in later years, MCA and the others were praised for their feminist legacy

      • dupreeblue

        You’re kidding, right Jeff? Even if you didn’t know it before this whole saga, almost every article has mentioned how “Girls” was a parody of all the sexist & misogynistic rap of the time. So…no. Describing them as feminist isn’t ironic at all.

      • License to Ill (and thus Girls) came out in 1986 not 1989. Additionally, like most of the album, it was parody and not meant to be taken seriously. I doubt even the early Beasties thought girls should only be doing dishes.

        • Thanks for comments Jeff and dupreeblue.. I’ve fixed the 1986 reference in the story and also referred people to these comments re the “sexist debate”

          While Licensed to Ill was decidedly less misogynistic than other rap of the time, and contained strong elements of parody, the song “Girls” on its own could fairly be described as sexist.. In later songs, the band was explicitly pro-women..

          I didn’t mean it was ironic to describe the band as feminist — only that it was ironic that a band with a strong feminist debate is now at the center of a debate over gender roles

          • I found another blatantly sexist rapper: Jon LaJoie. His tune “Show Me Your Genitals” on youtube has to be one of the most sexist songs ever performed. He even tries to defend in the lyrics: “It’s not sexist ’cause I’m saying it in a song”. These popular rappers are destroying the moral fabric of society with their sexist songs. They are lyrically raping women everywhere. In cases like this, I think the for profit toy companies should be allowed to violate copyright laws and use works for free, because the original artists are sexist dirt bags. Clearly something needs to be done to turn back such vile sexist filth being paraded around as “art”.

    • If you want to give non-profits like educators greater rights, you have to give commercial use fewer rights. (Not that the colleges are really non-profits given the huge salaries paid to the top administrators, but that’s another debate. )