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).