November 24, 2013 | By corynne mcsherry

Girls Against Boys: What's Wrong With the (Latest) Beastie Boys Lawsuit

“Oh no!” said the email that went round the EFF office on Friday. Could it be true that the Beastie Boys had unleashed the legal hounds to shut down a parody ad that uses the group's classic misogynistic ditty, “Girls”? Surely not. As remix pioneers, the Beastie Boys are the veterans of many legal battles against copyright maximalists. The Beastie Boys aren’t copyright bullies, they fight those bullies. Right?

Wrong, at least this time. The Beastie Boys and Universal Music have indeed accused the video's creator, toy company GoldieBlox, of copyright infringement. Happily, GoldieBlox not only refused to be intimidated, it decided to go on the offensive, filing a complaint asking a federal court to declare that the ad was a lawful fair use.

It's unclear how strong the legal threats were—they aren’t attached to the complaint—but GoldieBlox is clearly worried not just about an infringement lawsuit, but any effort to abuse the DMCA to take down the video just as the holiday shopping season gets under way.

The Beastie Boys famously object to the use of their music in any advertising. Adam Yauch explicitly mentioned it in his will. Nonetheless, GoldieBlox should win on the merits. Here’s why.

The fair use analysis turns on four factors, considered together in light of the purposes of copyright. The first factor, the purpose of the use, considers whether the use transforms the original work to create something new and different and also, to a lesser extent, whether it is commercial. In this case, the use is clearly transformative. GoldieBlox describes itself as a company “on a mission to inspire the next generation of female engineers.” To promote its toys and its mission, it took a song that has been widely criticized for its characterization of women and rewrote the lyrics to tell a different story. Instead of “Girls, to do the dishes; Girls, to clean up my room” (the original lyrics), we hear “Girls, to build a spaceship; Girls, to code the new app” etc. There's an obvious commercial element – it’s an advertisement - but that doesn’t end the analysis, especially when the use is highly transformative. This factor favors GoldieBlox.

The second factor considers the nature of the original work: whether it is more or less creative, and whether it is published or unpublished. Copyright tends to give greater protection to creative works like “Girls,” but that need for protection may be mitigated where, as here, a song is long since published and the creator has had ample chance for compensation. This one is a draw, or at most slightly favors the Beastie Boys.

The third factor considers whether GoldieBlox used more of the original work than needed for the purpose. This factor also favors GoldieBlox. The ad uses the instantly recognizable basic tune, but strips out the drum beat and original vocals. While it runs two minutes (most of the length of the original published recording), that’s no more or less than necessary to let the Rube Goldberg machine depicted in the ad run its course. GoldieBlox could have made a less intricate machine, of course, but that would have undermined the purpose of showing the amazing creative engineering girls can do.

As for the fourth factor, market harm, it’s hard to imagine what market is harmed. Sure, the Beastie Boys may have a potential market for licensing songs for commercials (albeit one they chose not to pursue), but this is different—the purpose is an explicit parody. As the Supreme Court has recognized, critical transformative uses rarely if ever supplant markets for the original material.

Taken together, the factors favor fair use. Moreover, the video furthers the purposes of copyright. It serves the public interest by advancing political criticism and debate regarding sexist stereotypes about girls and engineering. What is more, it’s a classic example of growing the cultural commons by remaking existing cultural works to create new insights and expression. That kind of creativity what fair use is for. And it’s part of what made the Beastie Boys great.

On the merits, then, the fair use analysis is solid. But expect to hear this counterargument: that one of the most basic “copyrights” is the right to control how your work is used—including whether it is used at all. Proponents of this kind of claim will often invoke J.D. Salinger’s steadfast opposition to any adaptions of his works. But the argument forgets that every copyright set out in the Copyright Act is subject to numerous exceptions – including fair use. Copyright total control.

Sorry, Beastie Boys, you got this one wrong. We hope you and Universal Music do the right thing—or that a court does it for you.


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