Fight for your right to parody. Or don’t.
Sometimes, just when a copyright dispute is getting very interesting, the parties go and do the unthinkable: They resolve their differences like reasonable people, and then there’s nothing left to do but imagine how things might have played out. And here we are.
Recently, in a very short period of time—less than two weeks—these things happened, in fairly rapid succession:
- A company called GoldieBlox—established in 2012 to help introduce girls to the field of engineering—produced and released an advertisement for its products.
- The GoldieBlox spot got noticed—because it was twelve kinds of awesome—but one of the ways in which it was awesome is the parody of the song “Girls,” recorded and released in 1987 by the Beastie Boys, used as the soundtrack.
- GoldieBlox was contacted by counsel for the Beastie Boys. Said counsel reportedly notified GoldieBlox that because the Beastie Boys and writer/producer Rick Rubin, as copyright holders
of the original song, had not given—and did not now give—permission for a version of the song to be recorded and used, GoldieBlox was therefore infringing the exclusive intellectual property rights of the Beasties/Rubin, and that unless such infringement ceased and GoldieBlox desisted… well, you know the rest.
- GoldieBlox sued the Beastie Boys and Rubin—with admirable alacrity—for a declaratory judgment… and the Internets went nuts, in part because many laypersons do not understand what declaratory judgment is (remember the Robin Thicke/Marvin Gaye story from a few months ago?), and in part because many people thought they’d read or heard that the Beastie Boys had sued GoldieBlox.
- Then Beastie Ad Rock tweeted: “You guys..Don’t get it twisted. We did not threaten to sue Goldiblox..THEY’RE SUING US.” Which was accurate, if a tad disingenuous. A distinction without a difference, one might say.
- And then GoldieBlox did something seemingly—see below—very classy: The company posted an open letter to the surviving Beastie Boys stating, among other things, that the company was unaware before hearing from the Beasties’ counsel that the late Adam Yauch had “requested in his will that the Beastie Boys songs never be used in advertising” and for that reason, even though “we believe our parody video falls under fair use, we would like to respect his wishes and yours,” GoldieBlox had already removed the song from its video. (Of course, the unredacted version can still be found with no effort at all, but it would be irresponsible for this blawg to point you to anywhere specific.)
I write “seemingly,” because one might argue that GoldieBlox has already gotten everything it had hoped to from its song parody, and therefore removing it now is merely… er, lip service. Indeed, some have suggested that GoldieBlox’s entire goal from the start was simply to get press, and that proactively suing the Beastie Boys was just a part of the plan—except that to bring a legitimate suit for declaratory judgment one needs to allege a real controversy, and there would have been none if the Beasties’ lawyers had not threatened legal action. And it’s not as if you can force someone else’s lawyer to threaten you with litigation. The most you can do is use their intellectual property without permission in a video that goes viral and… wait just a minute…!)
This will probably be the end of the matter. It’s difficult to imagine that the Beastie Boys and Rick Rubin will insist on receiving damages, even if GoldieBlox benefited financially from the use of the song. Indeed, because GoldieBlox was not selling its version of “Girls,” it might be impossible to quantify just what financial benefit GoldieBlox derived. (On the other hand, that’s what statutory damages are for.)
So, while it’s nice to see businesspeople resolve their disputes quickly and amicable, this blawger would be lying if he wrote that he hadn’t been looking forward to seeing how this matter would play out in court. More than one person had asked me which side I thought was likelier to prevail, and I enjoyed making predictions. And I predicted, if you’re wondering, that GoldieBlox would prevail.
Because yes, the purported parody was made for a commercial purpose, but commercial use is not in itself an automatic disqualifier, as we know. When 2 Live Crew parodied “Oh, Pretty Woman,” it might have had social commentary on its collective mind, but it probably wanted to make money from record sales more. Still, there was social commentary in “modernizing” a song sung to a prostitute… and there’s certainly some in converting an undeniably misogynistic song (“Girls… to do the laundry/Girls… to clean up my room”) into an anthem of empowerment (“Girls… to build the spaceship/Girls… to code the new app”). And, again, while the use of the parody is without question commercial, it’s indirectly commercial… or indirectly financially beneficial to the parodist, anyway, in that the products being sold are toys for girls with an interest in engineering.
Alas, we’ll never know how this would have played out. That is, unless the Beastie Boys don’t allow GoldieBlox to withdraw its suit for preliminary judgment… but that would be pretty much unthinkable. After all, if Ad Rock didn’t want the world to think that he and Mike D had sued GoldieBlox, how could they not let the pending pre-emptive litigation be dismissed?