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Alls GoldieBlox, Inc. Really Wants is Fair Use? Or is it?

By Justin Joel

On November 21st, GoldieBlox, Inc. (GoldieBlox) filed a complaint (http://www.scribd.com/doc/186402972/Beastie) with the United States District Court for the Northern District of California seeking a declaratory judgment that its promotional video did not infringe the copyrights in the Beasties Boys' song "Girls" and was a fair use. The resulting transgressions have prompted an interesting discussion about fair use, each party's handling of the situation, and GoldieBlox's underlying motives for filing the complaint.

Background

GoldieBlox, a toy company, was "founded upon the principle of breaking down gender stereotypes, by offering engineering and construction toys specifically targeted to girls." In furtherance of this goal, the company utilizes a series of promotional videos depicting girls engaged in so-called "nontraditional" activities. GoldieBlox's most recent video depicts three girls who choose to construct a complex Rube Goldberg mechanism instead of dressing up as princesses. The video was set to the Beastie Boys' song "Girls" with modified lyrics. A portion of the pertinent lyrics in Beastie Boys' version of the song are: "Girls - to do the dishes / Girls - to clean up my room / Girls - to do the laundry / Girls - and in the bathroom / Girls, that's all I really want is girls." GoldieBlox's video replaced these lyrics with: "Girls - to build the spaceship / Girls - to code the new app / Girls - to grow up knowing / That they can engineer that / Girls. That's all we really need is girls."

GoldieBlox seeks Declaratory Judgment

GoldieBlox alleges in its complaint that the Beastie Boys acted first "by threaten[ing] GoldieBlox with copyright infringement." The Beastie Boys later claimed that they were "simply ask[ing] how and why [the Beastie Boys'] song 'Girls' had been used in [GoldieBlox's] ad without [the Beastie Boys'] permission."

In response to the alleged threats, GoldieBlox filed a complaint with the United States District Court for the Northern District of California seeking a declaratory judgment that its video did not infringe the copyrights in the Beastie Boys' song "Girls" and was a fair use. GoldieBlox also sought an injunction to prevent the defendants, Island Def Jam Music Group, Brooklyn Dust Music, the Beastie Boys, Sony/ATV Music Publishing Group LLC, Universal Music Publishing, Inc., Rick Rubin, and Adam Horovitz from "any efforts to enforce any copyright in Girls against the GoldieBlox Girls Parody Video, including through the use of DMCA takedown notices or otherwise."

Fair Use?

To determine whether GoldieBlox made a fair use of the Beastie Boys' song in its video, the court would consider at least the four factors contained in Section 107 of the Copyright Act: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

Most of the discussion surrounding the dispute has focused on the first fair use factor. It seems clear that despite its underlying social message, GoldieBlox's video has a commercial purpose. GoldieBlox is a toy company that uses its videos to promote and sell toys. In an open letter response to GoldieBlox's action, the surviving members of the Beastie Boys, Michael "Mike D" Diamond and Adam "Ad-Rock" Horovitz, stated that while they "were very impressed by the creativity and the message behind [the] ad . . . 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." In addition, the late Adam "MCA" Yauch's will prohibits use of his "image or name or any music or any artistic property created by me . . . for advertising purposes."

However, "the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994). The fact that the alleged infringing use is of a commercial character does not in itself prevent a fair use finding, nor is the use's commercial nature dispositive as to the first factor. Id. at 584-85.

Rather, "the central purpose of this investigation is to see . . . whether the new work merely 'supersede[s] the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is 'transformative.' Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Id. at 579.

GoldieBlox's main argument in support of its fair use claim is that its video is a parody. The Supreme Court has recognized a distinction between parody and satire, and this distinction would likely weigh heavily in a court's decision as to whether or not GoldieBlox's video is a fair use. A parody, for purposes of copyright law, is "the use of some portion of a work in order to 'hold it up to ridicule,' or otherwise comment or shed light on it." Henley v. DeVore, 733 F.Supp.2d 1144, 1151 (C.D. Cal. 2010). Whereas the copyrighted work is the target in a parody, the copyrighted work is merely a vehicle to poke fun at another target in a satire. Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997). The Supreme Court has recognized that parody has a stronger claim to fair use than satire. "If . . . the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing." Campbell, 510 U.S. at 580-81. However, the Supreme Court also stated that: "the use . . . of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake . . ." Id. at 585.

GoldieBlox argues that its video is a parody, "with specific goals to make fun of the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math." According to GoldieBlox, in "Girls'" lyrics, "girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers." GoldieBlox claims that its video "takes direct aim at [Beastie Boys'] song both visually and with a revised set of lyrics celebrating the many capabilities of girls."

Most Recent Developments:

On November 27th, GoldieBlox removed the original version of its video that utilized the Beasties Boys' song with modified lyrics from its website. The company replaced the video with one with similar music, but no lyrics. GoldieBlox also issued a statement offering to withdraw its complaint if the Beastie Boys' lawyers made no further threats against the company. However, GoldieBlox reiterated that it still believed that the video was a parody and a fair use. As of this writing, the Beastie Boys have yet to issue a response. However, at least one commentator is speculating that the Beastie Boys will request a sincere apology and a charitable donation. Some have speculated that GoldieBlox only filed the complaint in order to bring attention to its company for the holiday shopping season. Stay tuned, as this situation is clearly still developing.


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This page contains a single entry from the blog posted on December 1, 2013 9:08 AM.

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