What's Wrong With the Latest Beastie Boys Lawsuit(eff.org)
eff.org
What's Wrong With the Latest Beastie Boys Lawsuit
https://www.eff.org/deeplinks/2013/11/beastie-boys-goldieblox-fair-use-lawsuit
14 comments
They're not being sued. The band reached out to (one assumes) ask them not to use their material without authorization in a commercial, and the company sued them.
From https://en.wikipedia.org/wiki/Declaratory_judgment:
Still, the video clearly invokes the memory of The Beastie Boys' song to promote a product, giving the viewer the impression that Goldieblox is endorsed by The Beastie Boys. If it were my identity being appropriated by another company for advertising, I would not be okay with it either, no matter how progressive the product (and that's why I no longer review things via Google products, for example).
A declaratory judgment is typically requested when a party
is threatened with a lawsuit but the lawsuit has not yet
been filed...
Still, the video clearly invokes the memory of The Beastie Boys' song to promote a product, giving the viewer the impression that Goldieblox is endorsed by The Beastie Boys. If it were my identity being appropriated by another company for advertising, I would not be okay with it either, no matter how progressive the product (and that's why I no longer review things via Google products, for example).
That's really scummy of the EFF to phrase the title in a way that makes it seem like the Beastie Boys filed the suit.
I don't think it's ignoring that. Fair use for profit can still be legal. See Campbell v. Acuff-Rose Music Inc as an example.
But in that case, the commercial good is the parody song itself. 2 Live Crew didn't turn around and use that song in a commercial for women's depilatory products.
I don't think I've heard anyone argue that the song isn't fair use in and of itself. Using the parody song to advertise a tangentially related good is another story.
I don't think I've heard anyone argue that the song isn't fair use in and of itself. Using the parody song to advertise a tangentially related good is another story.
Hmm. So the first argument was that fair use can't be commercial, but the Supreme Court obviously showed that commercial parody can be considered fair use. Now the argument is that the parody isn't commercial enough? That it's tangential? Is your argument that because it's tangential it is less of a parody? (Sorry if I'm not totally following... long day at work...)
I didn't make the first argument and don't agree with it.
To me (not a lawyer) creating a commercial parody should not disqualify a work from being fair use per se. Campbell clearly backs that up.
The copyright act says the law should analyse:
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"
The Girls parody is for a commercial nature, as was Pretty Woman. But the purpose and character of them are different - Pretty Woman was created as a piece of art that was created to parody Oh, Pretty Woman. The Girls parody was created to be the soundtrack of an advertisement for Goldiblocks.
There seems to be a slippery slope: should advertisers get free access to the oeuvre of popular music to use without cost, provided they change the nature of the piece? That would seemingly break "(4) the effect of the use upon the potential market for or value of the copyrighted work."
But that's just my gut feeling. I'm obviously not an expert here.
To me (not a lawyer) creating a commercial parody should not disqualify a work from being fair use per se. Campbell clearly backs that up.
The copyright act says the law should analyse:
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"
The Girls parody is for a commercial nature, as was Pretty Woman. But the purpose and character of them are different - Pretty Woman was created as a piece of art that was created to parody Oh, Pretty Woman. The Girls parody was created to be the soundtrack of an advertisement for Goldiblocks.
There seems to be a slippery slope: should advertisers get free access to the oeuvre of popular music to use without cost, provided they change the nature of the piece? That would seemingly break "(4) the effect of the use upon the potential market for or value of the copyrighted work."
But that's just my gut feeling. I'm obviously not an expert here.
My argument is it isn't a parody at all. They reworked the lyric for their product. It's done a lot in advertising ("I'd like to buy the world a coke" vs. "I'd like to teach the world to sing".)
It boils down to this: the Beastie Boys song had more worth than an original song they wrote themselves. In addition to the actual song (which is a snappy professional-grade pop tune) they appeared to be trading on the Beastie Boys name in promoting the video.
With limited exceptions, if you're using the creating works of others for your commercial benefit, you should pay the artist. Full stop.
It boils down to this: the Beastie Boys song had more worth than an original song they wrote themselves. In addition to the actual song (which is a snappy professional-grade pop tune) they appeared to be trading on the Beastie Boys name in promoting the video.
With limited exceptions, if you're using the creating works of others for your commercial benefit, you should pay the artist. Full stop.
I think they're trying to downplay it too much. This is a toy company showing girls playing with toys while singing about wanting more toys.
Yes, it does have a much better message than most- that girls should have more toys available than just things made of pink and dolls. But I'm not sure that pink lincoln logs is the way to do this ( http://www.goldieblox.com/collections/products ), and I do think it very likely that this video was done by a marketing department trying to get their name out there.
Yes, it does have a much better message than most- that girls should have more toys available than just things made of pink and dolls. But I'm not sure that pink lincoln logs is the way to do this ( http://www.goldieblox.com/collections/products ), and I do think it very likely that this video was done by a marketing department trying to get their name out there.
they are definitely using a lot of progressive discourse to seem like they anything but another commercial interest, girls/feminism (for profit (keep that in mind)). another would be the beastie boys-approves discourse. some very very smart marketing people at goldieblox
they just want profit like the rest of the capitalist world. beastie boys are the victim here, a capitalist enterprise stole their track. kill it with fire.
they just want profit like the rest of the capitalist world. beastie boys are the victim here, a capitalist enterprise stole their track. kill it with fire.
That's the whole reason they're being sued, because the Beastie Boys don't want their stuff being used for advertisements.
It's ironic that a corporation (mis)using their song helped them bootstrap their music careers. Back in '84, British Airways used their first hip-hop track, Cooky Puss, in a commercial. The Beasties sued, won $40k, and quit their day jobs.
It's ironic that a corporation (mis)using their song helped them bootstrap their music careers. Back in '84, British Airways used their first hip-hop track, Cooky Puss, in a commercial. The Beasties sued, won $40k, and quit their day jobs.
This is an analysis that says companies with messages we "like" can use Calvin & Hobbes in their advertising, as long as they do it creatively. Gross.
It's a special case of a more general principle. Companies we like can do anything.
Agreed. This analysis was so weak that it gives me hope that GoldieBlox will lose their lawsuit.
Also, can someone explain how "highly transformative" is defined? Does changing some of the lyrics and dropping the drum beat count as "highly transformative"?
Also, can someone explain how "highly transformative" is defined? Does changing some of the lyrics and dropping the drum beat count as "highly transformative"?
It's sad but so much of the law works that way in practice. And it's very hard to fix.
that's my take on it too.
EFF is tipping their hat to agendas far beyond electronic freedom in saying they endorse this use.
EFF is tipping their hat to agendas far beyond electronic freedom in saying they endorse this use.
I think it's an important point that the GoldieBlox video is directly attacking the message of the original song. To way oversimplify: Modifying someone else's copyrighted work to make a generic point = Satire, not fair use, not OK; Modifying someone else's copyrighted work to specifically contradict the message of that work = Parody, fair use, A-OK.
But for commercial purposes... I think that takes a lot of the argument away.
The counter-example that has stuck with me is the novel "The Wind Done Gone":
http://en.wikipedia.org/wiki/The_Wind_Done_Gone.
It's Gone with the Wind, re-imagined from a slave's point of view - and a direct criticism of the work, published for profit and without permission.
The Second Circuit (probably the biggest copyright circuit, thanks to NYC) ruled that there was at least enough fair use there to overturn a preliminary injunction.
http://en.wikipedia.org/wiki/Suntrust_v._Houghton_Mifflin
Then the case settled.
Satire and parody are practiced by the Onion for commercial gain. Should/does that alter the protections afforded to such transformative works?
The Onion is an editorial publication, in the business of parody and satire, clearly a different category of use than a toy company creating a advertisement.
My statement was an oversimplification, but you're right, Commercial purpose would weigh against a finding of fair use in a part of the 4 factor balancing test. Does that take "a lot" of the argument away or a little? Depends on what the judge had for breakfast that day, I guess. In my head, the direct criticism of the original work is a stronger factor, but that may be based off my own fuzzy memory of the cases and pro-fair use biases. I guess I feel that criticism should be protected as not only federal common law fair use, but even more strongly as First Amendment speech - if I remember correctly that is as of yet an unanswered question in the caselaw.
ironchef makes a comment below (https://news.ycombinator.com/item?id=6798749) that being commercial doesn't matter. Otherwise, every piece of fair use on YouTube could be taken down considering YouTube is a commercial site.
Mike D & Ad-Rock respond: http://www.nastylittleman.com/2013/11/25/open-letter-from-be...
Logically irrelevant, but also a factor for me: the product, and the ad, are trying way too hard. I have a daughter in the target age range, and I found the ad to be repellent.
It's addressing itself to adults, not kids, for one thing. And it seems to be fighting yesterday's battles. The "pink is for girls" thing has been fought out for years now. Everyone who could be convinced has been convinced.
It's addressing itself to adults, not kids, for one thing. And it seems to be fighting yesterday's battles. The "pink is for girls" thing has been fought out for years now. Everyone who could be convinced has been convinced.
> And it seems to be fighting yesterday's battles. The "pink is for girls" thing has been fought out for years now. Everyone who could be convinced has been convinced.
I think this is completely untrue. Especially after seeing my nieces this past week. The more my daughter is exposed to the normalcy of colors other than pink the better.
I think this is completely untrue. Especially after seeing my nieces this past week. The more my daughter is exposed to the normalcy of colors other than pink the better.
I felt like the video was taking the wrong path. It was accepting that pink is the normal for girls, and encouraging girls to rebel against pink. Even its appeal to rebellion was shallow and stereotyped.
There is no consideration of what the kid wants, just nagging them to be a certain way by buying the product. (My daughter is not now, nor has she ever been, a pinkophile, but if she was, I wouldn't nag her to be something else. ;-)
There is no consideration of what the kid wants, just nagging them to be a certain way by buying the product. (My daughter is not now, nor has she ever been, a pinkophile, but if she was, I wouldn't nag her to be something else. ;-)
I think it's also a hoot that they are in contempt of pink yet all their products feature purples and golds. Every princess color _except_ pink.
http://www.goldieblox.com/collections/products
http://www.goldieblox.com/collections/products
It's a cultural battle. Subconscious mindshare is the name of the game. Whether people are or a can be convinced at a conscious level is more or less irrelevant- the impulses that go before rational thought are what count.
"Subconscious mindshare is the name of the game."
That's why the reactive mentality of the ad was particularly uninspiring. Dissing pink is not edgy, brave, or memorable. It's been done, it's over already.
That's why the reactive mentality of the ad was particularly uninspiring. Dissing pink is not edgy, brave, or memorable. It's been done, it's over already.
TL;DR: 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.
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.
That first paragraph highlights the problem with the EFF's analysis.
It is not in 'the public interest by advancing political criticism' if at the end you try and sell you shitty toy.
I would buy the argument it if it was broadcast as a non-profit campaign and at the end a shot 'sponsored by', but this is a commercial plain and simple.
It is not in 'the public interest by advancing political criticism' if at the end you try and sell you shitty toy.
I would buy the argument it if it was broadcast as a non-profit campaign and at the end a shot 'sponsored by', but this is a commercial plain and simple.
Thank you HN for your response, I totally expected to open comments and see people siding with GoldieBlox here, like I would normally side with most things EFF do.
I think GoldieBlox made this suit to promote themselves, so it looks like a stunt to me. I am surprised that EFF jumped the gun, but then, it really doesn't make me think any less of them.
I think GoldieBlox made this suit to promote themselves, so it looks like a stunt to me. I am surprised that EFF jumped the gun, but then, it really doesn't make me think any less of them.
I don't understand how GoldieBlox are positioned as the victims here when they were the ones to initiate a lawsuit and accuse the rightsholders of being bad actors. Getting a letter from a rightsholder when you use their work without permission for PROFIT is not exactly an unexpected turn of events.
If this were just some sort of educational or satirical video then I'd be more willing to be on their side about this, but it's obvious they're looking to sell product. If they're going to use someone else's work without permission to make money, they should be willing to face the consequences (or at least pay the normal royalties you pay when covering a song).
If this were just some sort of educational or satirical video then I'd be more willing to be on their side about this, but it's obvious they're looking to sell product. If they're going to use someone else's work without permission to make money, they should be willing to face the consequences (or at least pay the normal royalties you pay when covering a song).
If you send a letter to someone threatening them with legal action, they will often initiate legal action to have the court decide if your legal action would succeed. I don't know what the Beastie Boys said to GoldieBlox, but the EFF article mentions that GoldieBlox was worried that the Beastie Boys would initiate litigation right at the holiday season, leaving them without a commercial. GoldieBlox decided to ask a court to decide earlier.
There's nothing wrong with this. It does point out an interesting lesson, though: never explicitly threaten someone with legal action, they might very well take the opportunity to pre-emptively sue, and if you were just posturing you'll now be spending a lot of money on lawyers. (This is why letters that are pretty much threatening to sue will instead say something like "We trust you will stop injuring us. If you do not, we reserve all rights.")
There's nothing wrong with this. It does point out an interesting lesson, though: never explicitly threaten someone with legal action, they might very well take the opportunity to pre-emptively sue, and if you were just posturing you'll now be spending a lot of money on lawyers. (This is why letters that are pretty much threatening to sue will instead say something like "We trust you will stop injuring us. If you do not, we reserve all rights.")
This tactic is even more common in Patent law. If you get the jump on the would-be plantiff you get to pick the venue, and hopefully stay out of the Patent-holder rubber stamp that is the Eastern District of Texas.
If I'd known it was this easy I would have released a commercial that changes the words to "(I Can't Get No) Satisfaction" to be about my company, and sued the Rolling Stones.
This is an interesting new wrinkle for me, when it comes to intellectual property. In this case the benevolent anarchy of the old axiom "information wants to be free" rings less true.
This one feels dangerously close to the classic power struggle between underdog music artists and the rotten record labels that have a habit of steam-rolling over their creative sensibilities so they can bastardize an artistic work in the name of selling more spaghetti sauce.
This whole intellectual property thing has always, always, ALWAYS been about the individual's fight against the slippery oligarchy of private companies and corporations. It's almost impossible to paint a corporation as the poor, defenseless victim. The Beastie Boys, in this respect are more individualistic than the company.
In this case the Beastie Boys are not sell-outs. Their position rings truest.
It's funny to see this slight change in power differential augment the perception of the conflict. Does this mean that information wants to be free, if and only if it's being freed into the hands of a private individual and not a faceless profiteering company? Yeah, kind of.
Sorry, EFF. You are pretty much entirely wrong on this one.
This one feels dangerously close to the classic power struggle between underdog music artists and the rotten record labels that have a habit of steam-rolling over their creative sensibilities so they can bastardize an artistic work in the name of selling more spaghetti sauce.
This whole intellectual property thing has always, always, ALWAYS been about the individual's fight against the slippery oligarchy of private companies and corporations. It's almost impossible to paint a corporation as the poor, defenseless victim. The Beastie Boys, in this respect are more individualistic than the company.
In this case the Beastie Boys are not sell-outs. Their position rings truest.
It's funny to see this slight change in power differential augment the perception of the conflict. Does this mean that information wants to be free, if and only if it's being freed into the hands of a private individual and not a faceless profiteering company? Yeah, kind of.
Sorry, EFF. You are pretty much entirely wrong on this one.
Did Weird Al have to get permission for his song parodies? This is essentially a parody, though I don't know how the law applies differently if it's made for a commercial. It'll be interesting to see how this plays out. Anyone know how it legally differs from other "same beat, different lyrics" songs?
Does he have to? Most people say no.
But he doesn't publish a parody without permission. He makes sure he has permission before he does any of them.
But he doesn't publish a parody without permission. He makes sure he has permission before he does any of them.
A lawsuit = massive attention, the kind advertising doesn't buy.
GoldieBox is a toy company right? so they are doing that ad for profit, i dont think the BB will lose their case. It's not fair use if it is commercial.
"It's not fair use if it is commercial" <- that statement isn't true. See Campbell v. Acuff-Rose Music Inc as an example where parody (for profit) still won.
You're on thin ice with that argument. Selling a parody of a creative work is commercial, but that's wholly different from presenting a commercial message for a separate product.
Imagine a TV advert for cosmetics or apparel that used 'Pretty woman' (even in parodic form or heavily transformed): this is a very different kind of commercial application. In your example the parodist is selling a new version of the song; in the example above a new version of the song is being used to sell something else. This is a classic example of where licensing is appropriate because any resulting commercial transactions will not be made by an audience on aesthetic grounds of preference for the new song, but by customers who wish to purchase a girl-themed construction toy.
I think your/the EFF's legal theory here is DOA and will be extremely surprised if GoldieBlox succeeds.
Imagine a TV advert for cosmetics or apparel that used 'Pretty woman' (even in parodic form or heavily transformed): this is a very different kind of commercial application. In your example the parodist is selling a new version of the song; in the example above a new version of the song is being used to sell something else. This is a classic example of where licensing is appropriate because any resulting commercial transactions will not be made by an audience on aesthetic grounds of preference for the new song, but by customers who wish to purchase a girl-themed construction toy.
I think your/the EFF's legal theory here is DOA and will be extremely surprised if GoldieBlox succeeds.
I guess I'm confused as to why. Commercial use is but one of the four factors (within the purpose and character factor). Is it only being used to supersede the original and generate commercial gains? Or is it being used to stimulate for general enrichment? In combination with criticism of the original song it could (I believe) be seen as the second. Because of the criticism it could be argued to be a transformative and not merely a derivative work, no?
It's somewhat transformative, though mainly in the lyrical department; musically it doesn't use the original recording but it does employ the same compositional elements virtually unaltered, so it's not as transformative as it could be (eg 'quoting' a short musical sample as a motif in a more original composition). But losing any prong of the argument is a problem, and even the EFF admits the length amounts to almost the same as the original, while offering the weak excuse that it was necessary to show a sufficiently elaborate machine.
I do agree that the harm that would be suffered by the band/publisher is negligible, but 'they can afford it' is a weak rationale; the band/label are in a much stronger position on this prong because they've consistently refused to license their work for commercial purposes, so they can argue that this represents brand dilution rather than the relatively paltry cost of a temporary license, leaving the door open for a finding of more significant economic damages. Now if they counter sue Goldie Blocks the court might not look too favorably on it, but as it is GB's suit IMHO amounts to little more than a temper tantrum about the company's inability to get what it wants. Of course, the firm may consider the publicity value to be greater than the legal costs.
I do agree that the harm that would be suffered by the band/publisher is negligible, but 'they can afford it' is a weak rationale; the band/label are in a much stronger position on this prong because they've consistently refused to license their work for commercial purposes, so they can argue that this represents brand dilution rather than the relatively paltry cost of a temporary license, leaving the door open for a finding of more significant economic damages. Now if they counter sue Goldie Blocks the court might not look too favorably on it, but as it is GB's suit IMHO amounts to little more than a temper tantrum about the company's inability to get what it wants. Of course, the firm may consider the publicity value to be greater than the legal costs.
the eff article is sexist, i don't think i will be donating to or praise eff anymore.
(from the article):
"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"
GIRLS?! i think most intelligent adults prefer the terms female or women... do grown men refer to themselves as/idetify with the term "boy engineers"? no i didn't think so.
poorly written article by someone trying too hard but missing key points in gender equality/social construction.
eff please be better than this.
(from the article):
"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"
GIRLS?! i think most intelligent adults prefer the terms female or women... do grown men refer to themselves as/idetify with the term "boy engineers"? no i didn't think so.
poorly written article by someone trying too hard but missing key points in gender equality/social construction.
eff please be better than this.
This part in particular bothered me-
>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.
While the Copyright Act does have numerous exceptions, fair use explicitly takes into account whether something is commercial or not. Ignoring that is disingenuous at beast.