Missed Opportunity: Beastie Boys Should Have Supported Viral Parody 'Girls' Song, Rather Than Claiming Infringement

from the this-is-unfortunate dept

Well, this is rather disappointing. The Beastie Boys relied significantly on fair use for a lot of their music. The famed "Paul's Boutique" album, which did license some samples, is still involved in lawsuits, and a recent look at the insane cost of sampling has suggested that with today's licensing rates, there's simply no way to legally produce an album like that today. Given that, you'd think and hope that the Beastie Boys themselves wouldn't go around acting like copyright bullies. And, historically, they've mostly avoided doing so. That's why it's so disappointing to see that they've threatened the toy company GoldieBlox for the video it produced, which parodies the Beaties' classic song Girls (which samples a few songs itself), by changing the lyrics in a way that clearly comments on the misogynistic lyrics of the original. Here's the video, which went super viral earlier this week:
The whole point is to mock the message of the original song, with its famous refrain: "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." The new one switches it to: 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." The point is pretty clear. Parody the original song to highlight how ridiculous that stereotypical image of girls is -- and, of course, highlight how the kinds of toys that GoldieBlox makes can be useful in learning.

Unfortunately, however, the Beastie Boys, along with Universal Music, sent a letter to GoldieBlox threatening a copyright infringement claim. GoldieBlox decided to strike first, and has filed for a declaratory judgment in California -- a somewhat risky move. GoldieBlox clearly makes the case that what they're doing is parody and protected fair use, but courts are notoriously fickle and arbitrary in making fair use decisions.
In the lyrics of the Beastie Boys’ song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. They are also shown engaging in activities far beyond what the Beastie Boys song would permit. GoldieBlox created its parody video specifically to comment on 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. The GoldieBlox Girls Parody Video has gone viral on the Internet, and has been recognized by the press and the public as a parody and criticism of the original song.
While GoldieBlox was clearly using this for commercial purposes, plenty of commercial activity has been seen as fair use. Further, it seems likely that the viral success of the video almost certainly drove renewed attention (and therefore revenue) to the original Beastie Boys song. This should play into the fair use analysis, but unfortunately many courts focus solely on the "potential licensing revenue" that could have been earned, and ignore the positive impact on the original of a parody. Hopefully, a court will recognize that this is fair use but, again, fair use decisions are almost entirely arbitrary at times.

Either way, it's really disappointing to see the Beastie Boys choose to go down this path. For years, the band appeared to try to get away from the song itself, recognizing how much criticism they got for the lyrics. Adam Horovitz was quoted in an interview noting that while the song was done "as a goof," many people took it seriously and the band should have been more cognizant of that. It's also claimed that the band never performed the song live. Given that, it seems like this would have been an excellent opportunity to embrace the parody, to support the basic message of the video and to show that they didn't really mean what was said in the original lyrics.

Instead, the (remaining) Beastie Boys come off as copyright bullies, trying to stifle a message of empowerment, while standing firm on a misogynistic message in their own song. Why they'd want to come off that way when they have a clear chance to change the storyline in their favor is beyond me.


Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 22nd, 2013 @ 8:25pm

    Again, WHERE is the downside? (If your notions are right.)

    If "Beastie Boys" want to shoot themselves in the foot, let's cheer and jeer them into doing it! Why in HELL are you disappointed thinking that they did?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Nov 22nd, 2013 @ 8:30pm

    Can somebody help me here?

    Just who are these ... Beastie Boys

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Nov 22nd, 2013 @ 8:33pm

    Does anyone actually listen to their songs anymore? I know the name of the group but am not a fan of their music.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Karl (profile), Nov 22nd, 2013 @ 9:00pm

    standing firm on a misogynistic message in their own song

    I may be giving them too much credit, but I always thought that the misogyny in that song was an intentional joke.

    Either way, this is not a good move on the Beasties' part. I'm hoping that this was done by the copyright owners themselves (i.e. Universal/Sony), and that the Beasties themselves had nothing to do with it.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Greevar (profile), Nov 22nd, 2013 @ 9:03pm

    Re: Can somebody help me here?

    I hope you're being sarcastic asking such an easy question on the internet.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Nov 22nd, 2013 @ 9:04pm

    That's like holding comedians responsible every time they make fun of something.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Baron von Robber, Nov 22nd, 2013 @ 10:05pm

    You gotta fight...

    ...for your right....to paaarody!

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Mike Masnick (profile), Nov 22nd, 2013 @ 10:09pm

    Re:

    I may be giving them too much credit, but I always thought that the misogyny in that song was an intentional joke.

    I believe it is... but that many people interpreted it as serious, which is why they shied away from the song.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Internet Zen Master (profile), Nov 22nd, 2013 @ 10:12pm

    Re:

    As I recall, MCA's last will & testament stated that he didn't want the Beasties Boys' music to be used for advertising. And since this clearly is an advertisement and slightly shaky on the fair use angle, I can understand why Beastie Boys would be doing this.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    OldGeezer (profile), Nov 22nd, 2013 @ 10:38pm

    Re: You gotta fight...

    Parody isn't fair use? Can't earn any money from it? "Weird Al" Yankovic is in serious trouble! You would think a group so long forgotten would not want their memory now resurrected that they are assholes.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    CharlieBrown, Nov 22nd, 2013 @ 11:17pm

    What do you expect?

    What do you expect from the same group who helped Microsoft create WMA with DRM back in 2000?

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Stevo (profile), Nov 22nd, 2013 @ 11:48pm

    it's an Advertisement!

    Corporations do not have the right to use songs in advertising without the permission of the songwriters!
    Do you really wanna go down the rabbit hole where Exxon can promote fracking to the sound of Leonard Cohen's 'Hallelujah' ?
    From knowing the Beastie Boys, I am sure of 2 things:
    If an actual ARTIST requested a derivative work license for 'Girls' from the Beasties, they would easily get it.
    If someone posted on youtube a parody with well intentioned lyrics like these, they would enjoy it.
    That's not what this is about. It's an Advertisement!
    Does Masnick truly believe corporations are super entities that can ignore the laws the rest of us have to follow?

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    Stevo (profile), Nov 22nd, 2013 @ 11:51pm

    Re: Re: You gotta fight...

    if a corporation tries to use one of Weird Al's parodies for an advertisement without his permission , they will certainly be sued. And rightfully so.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    avideogameplayer, Nov 23rd, 2013 @ 1:50am

    Re: Re:

    [CITATION NEEDED]

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Karl (profile), Nov 23rd, 2013 @ 1:51am

    Re: it's an Advertisement!

    Corporations do not have the right to use songs in advertising without the permission of the songwriters!

    If their use of the song is fair use, then yeah, they absolutely do have that right.

    For example, 2 Live Crew were directly selling copies of their "Pretty Woman" parody. That's something that's as much, or more, of a commercial use as use in an advertisement. Yet their version was found to be fair use - and that's a very good thing.

    Does Masnick truly believe corporations are super entities that can ignore the laws the rest of us have to follow?

    On the contrary. He knows that nearly every publishing of a fair use work is "commercial" to some degree or another. And that if this company (who is no more of a corporation than Def Jam, Sony, Universal, or Brooklyn Dust) is not allowed fair use, the rest of us won't be allowed fair use either.

    In fact, it is you who is arguing that we can "ignore the laws" that GoldieBlox is supposed to follow.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 2:27am

    Re:

    Sort of a joke but kinda reveling in misogyny. They are very different people than they were during the Licensed To Ill days. The Beastie Boys addressed this in the song "Sure Shot"

    MCA: "I want to say a little something that's long overdue / the disrespect to women has got to be through / To all the mothers and the sisters and the wives and friends / I wanna offer my love and respect till the end"

    Which honestly only makes it even more odd to me that they'd object to the parody video/commercial.

    Unless it is specifically the commercial aspect...

    Which only

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    OldGeezer (profile), Nov 23rd, 2013 @ 2:54am

    Re: Re: Re: You gotta fight...

    If they used it outright with his parodied lyrics verbatim he would have a right to sue. But if somehow you could parody of HIS parody and change it enough to make it a derivative work it would still be fair use.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 3:47am

    Re: it's an Advertisement!

    No one needs permission to mock.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    beech, Nov 23rd, 2013 @ 4:09am

    Response to: Karl on Nov 22nd, 2013 @ 9:00pm

    I read that "fight for your right" was a satire of the kind of d-bags who enjoyed that song. Not too hard to see "girls" being parody/satire as well. Thats the problem with satirs though, its hard to do right without people taking you seriously.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Keroberos (profile), Nov 23rd, 2013 @ 5:15am

    Re: Re: Re: Re: You gotta fight...

    Also, commercial or advertising use doesn't necessarily negate the fair use defense.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    anonymouse, Nov 23rd, 2013 @ 5:16am

    What a mess

    Almost every single musicians and singer and content creator will tell of who they listen to and who influenced their music, this is a norm in society, seeing someone else doing something then building on that to create something bigger and better or something just plain fun.

    As things stand now copyright laws are not encouraging innovation , copyright laws are preventing any form of innovation and that is not what the law was created for.

    When are we going to have real changes to copyright laws that take all of the power away from the greedy ceo's and put the power in the hands of the artists, but on the understanding that they used others works to get to where they are, even if their content sounds nothing like the content already out there.

    Damn the copyright laws for creating an environment like we have pitting one against the other.

    I think lawyers should not be allowed to be involved in any future copyright changes as they are just encouraging behaviour that makes them very rich while everyone else is losing money.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    ClauClauClaudia, Nov 23rd, 2013 @ 5:57am

    Re: Re: You gotta fight...

    Weird AL gets permission for each song he uses/parodies rather than relying on fair use. Hence the communication problems regarding his Lady Gaga spoof Perform This Way.

    http://alyankovic.wordpress.com/the-gaga-saga/

    http://alyankovic.wordpress.com/2011/04/20/gaga-update /

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Ben S (profile), Nov 23rd, 2013 @ 6:16am

    Perhaps the aim isn't what it seems

    After reading the article, I noticed Masnick mention that the Beastie Boyz have been trying to shy away from the song. Perhaps this is yet another foolish attempt to try and hide something that they feel causes embarrassment. Get rid of the Girls parody, make people once again forget about the original. But, as we all know, that pretty much always fails.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    That One Guy (profile), Nov 23rd, 2013 @ 6:26am

    Re: Re:

    That's the nice thing about fair use though, the original creator doesn't get a veto(and a good thing too, otherwise a massive chunk of content that relies on fair use to be legal would be out of luck), so while assuming that's true I can understand why they might wish the song/video hadn't been created, as long as it qualifies as fair use, the 'new' song is here to stay.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Spaceman Spiff (profile), Nov 23rd, 2013 @ 6:47am

    Beastie Boys, or asshat lawyers for Universal?

    My guess is that the BBs had little to do with the decision to sue GoldieBlox. It was most likely some dickhead attorney at Universal who thought it would be appropriate... Someone should stick his (or her) head in the throne of the porcelain goddess and flush 3 times.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 7:22am

    Re: it's an Advertisement!

    So if I own a advertizing company and want to do a parody commercial, I can simply copyright the work under an employee's name and fiance the operation under the conditions of unlimited copyright use. Yeah, that makes a lot of sense.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    horse with no name, Nov 23rd, 2013 @ 7:39am

    hmm

    "Instead, the (remaining) Beastie Boys come off as copyright bullies, trying to stifle a message of empowerment, while standing firm on a misogynistic message in their own song. Why they'd want to come off that way when they have a clear chance to change the storyline in their favor is beyond me."

    Demonize much? Perhaps you can find that they didn't tip their waiter last night too, to complete the tar and feathering. Why should the message of their original song (which was done insanely tongue in rapper cheek) have anything to do with their rights as the original artist?

    The lengths you go to try to discredit people is beyond understanding.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    PRMan, Nov 23rd, 2013 @ 9:26am

    Re: Re:

    U2 did this with one of their albums (acting like spoiled rock stars completely tongue in cheek - Zooropa?) and they almost never recovered as a band until Coca-Cola used "Beautiful Day" during the Atlanta Olympics.

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 9:29am

    Re: Re: Re: Re: Re: You gotta fight...

    True!
    but note #3:

    Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are:
    1. the purpose and character of the use,
    2. the nature of the copyrighted work,
    3. the amount and substantiality of the portion used, and
    4. the effect of the use on the potential market for or value of the copyrighted work.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 9:51am

    Re: Again, WHERE is the downside? (If your notions are right.)

    The downside is that it costs money to win in court even if you're 110% in the right. But you and your masters know that because that's the way you like it to be: prohibitively expensive to exercise rights people don't pay for even if they obviously already have them.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 9:52am

    Re: Re:

    There is nothing shaky in the slightest on the fair use angle here.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 9:54am

    Re: Response to: Karl on Nov 22nd, 2013 @ 9:00pm

    It's hard to keep up the satire when the people you're supposedly lampooning are the ones who are cheering the loudest too.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 9:58am

    Re: it's an Advertisement!

    It's pretty disgusting that a derivative work license is even a thing. More on the topic at hand however a parody isn't derivative, it's transformative by definition.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 10:00am

    Re: Re: Re: Re: Re: Re: You gotta fight...

    Using 100% of the work doesn't a priori preclude a use from being fair and that's not even the case here.

     

    reply to this | link to this | view in thread ]

  35. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 10:36am

    Re: Re: Re:

    This isn't a Weird Al situation. It's a complete copy with a few words changed. For commercial use.

    They were too greedy to simply ask permission or pay for it.

    Only slimeballs like Mike Masnick support exploiting musicians like this.

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 10:37am

    Re: Re: Re: Re: You gotta fight...

    the might STILL be an issue with the original source, because keep in mind that "Weird Al" Yankovic's work uses licenses not 'fair use' .

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    jupiterkansas (profile), Nov 23rd, 2013 @ 10:54am

    Re: Perhaps the aim isn't what it seems

    Oddly, it's one of my favorite songs of theirs, and obviously a big joke. It's dumb to pretend it doesn't exist.

    But lots of people don't understand humor in music.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 10:57am

    Weird Al has at times used Fair Use over his career.

    He most commonly uses it when he is doing polka live on stage that mixes a number different sources into a single song, for example the last time I saw him he did almost all of the top 10 songs on the radio.

    He try's to get permission for parody for anything he puts on CD, and when he fails to get that, he will release the song for free, even when he has the fair use to sell the song.

    But this is out of respect for his fellow artists, and because its well known in the Biz that if Weird Al wants to make a parody then you have hit it big.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Anonymous, Nov 23rd, 2013 @ 11:03am

    Re:

    Apparently they'll be popular again in the 23rd century when kids like James "Siberius" (????) Kirk race around listening to them while trying to evade Robocop.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 11:05am

    Re: Re: it's an Advertisement!

    Yes, this parody is extremely valid and should not require a license.
    Advertisers using whatever music they want without permission is the issue here.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    Anonymous, Nov 23rd, 2013 @ 11:12am

    Re:

    So-called "artists" (AC/DC, Ice-T, Eminem, Beastie Boys come to mind) will release songs with satanic, violent, or misogynistic lyrics and then turn around and claim they were just joking. As a critic reviewing a Beastie Boys album once put it, "Above all else, it's just not funny. In fact, it's extremely mean-spirited".

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 11:24am

    Re: Re: it's an Advertisement!

    ' "commercial" to some degree or another'
    what the hey does that mean?
    I'm talking about a commercial as in an advertisement.
    For instance if Gillette put out a TV commercial for razors using 2 Live Crew's Pretty Woman.
    'Big hairy woman, all that hair ain't legit,
    'Cause you look like Cousin It.'
    You think 2 Live Crew wouldn't slap them with a lawsuit?

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 11:24am

    Re: Re: it's an Advertisement!

    ' "commercial" to some degree or another'
    what the hey does that mean?
    I'm talking about a commercial as in an advertisement.
    For instance if Gillette put out a TV commercial for razors using 2 Live Crew's Pretty Woman.
    'Big hairy woman, all that hair ain't legit,
    'Cause you look like Cousin It.'
    You think 2 Live Crew wouldn't slap them with a lawsuit?

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 1:03pm

    Universal Music are renowned for doing this sort of thing. what a shame they cant be put on a mission to the Sun, or somewhere equally as copyright ignorant and uncaring.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Nov 23rd, 2013 @ 1:53pm

    Re: Re: Re: Re:

    Did you even read the entire article?

     

    reply to this | link to this | view in thread ]

  46.  
    icon
    Karl (profile), Nov 23rd, 2013 @ 5:24pm

    Re: Re: Re: it's an Advertisement!

    I'm talking about a commercial as in an advertisement.

    Using a song in an advertisement is no more of a "commercial use" than simply selling the song outright. At least, not under the law. "Commercial" here just means "for profit," it doesn't specify how that profit is made.

    So, under the law, if it is not fair use to create a song used in an advertisement, it is not fair use to create a song and sell copies of it either.

    That's why it's important that advertisers be allowed fair use. If they don't have it, no other for-profit entity has it either. And nearly all speech has some sort of for-profit entity involved at some level.

    As an aside, if you think the songs themselves (hell, even the Beastie Boys themselves) are not "advertisements" for "products," then you really don't know what the music industry is.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 6:55pm

    fantasy island

    what fantasy island do you live on?
    In the real world using someone's song for advertising requires :
    a master license , and a
    publishing license.

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    That One Guy (profile), Nov 23rd, 2013 @ 7:20pm

    Re: fantasy island

    Except with a parody they're not using the original song, they're using a parody of it, which is covered under fair use.

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    That One Guy (profile), Nov 23rd, 2013 @ 7:28pm

    Re: Re: Re: it's an Advertisement!

    You need to make up your mind, in two short sentences you first say parodies don't require licensing, and then immediately after that you say that they do.

    Either a parody requires a license from the original creator*, or it doesn't, whether or not the use of the parody is for commercial gain is irrelevant.

    *Which they don't by the way, due to that whole 'Fair Use' part of the law.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    Stevo (profile), Nov 23rd, 2013 @ 7:52pm

    Re: it's an Advertisement!

    no contradiction, creating a parody is free speech and fair use.
    exploiting a parody is different thing entirely.
    In this particular case, the advertiser has either licensed the recording, or commissioned it as 'work for hire'. So the master is 'cleared'.
    However, since this new creation uses the title and melody of the Beastie Boys song, it requires their permission for the publishing license.
    Parodies are a huge part of music publishing and it's standard for the parodist to split credit and income with the original writers.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Eli, Nov 23rd, 2013 @ 9:14pm

    They have a right to the music they created.

     

    reply to this | link to this | view in thread ]

  52.  
    icon
    Nick (profile), Nov 24th, 2013 @ 7:38am

    Here is my question: where does Adam Horovitz's uber-feminist wife Kathleen Hanna have to say about attempts to stifle a song about girl power in her husband'a name?

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 7:53am

    Wasn't aware the Beastie Boys own any "intellectual property "

     

    reply to this | link to this | view in thread ]

  54.  
    icon
    DarwinWMedia (profile), Nov 24th, 2013 @ 10:58am

    Remake of "Fight For Your Right"

    This is the correct way to do it.
    Here is a remake of "Fight For Your Right" entitled "Fight" by pop singer Cara Quici. lt was licensed by SONY ATV and Universal Music Group and has gone viral with over 1,2 million views on youtube and soon to be on TOP 40 Radio.
    http://www.youtube.com/watch?v=lhIUgngAGV8&feature=youtu.be

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Lloyd, Nov 24th, 2013 @ 3:44pm

    Beastie Boys are right

    The beastie boys *did* rely heavily on fair use when they composed their songs. As they had every right to do. What they did not do was to take the songs of another artist, change the lyrics, and fail to license the original. Know why? Because that's not fair use.

     

    reply to this | link to this | view in thread ]

  56.  
    icon
    jupiterkansas (profile), Nov 24th, 2013 @ 3:46pm

    Re:

    And his asking permission is actually doing a disfavor to fair use. It gives people the impression that it's the proper and legal way to go about it. He (and everyone else) should be free to parody any song they like - without having to ask.

     

    reply to this | link to this | view in thread ]

  57.  
    identicon
    Lloyd, Nov 24th, 2013 @ 3:50pm

    Re: Beastie Boys are right

    And incidentally, despite your avowed"disappointment" with artists defending their rights to the commercial exploitation of their work, if the beastie boys let people use their music without paying them for it, they're not only bad businessmen, they're idiots too. Failing to defend your ownership of intellectual property can void your right to future protection.

    I'm "disappointed" in a toy company thinking they can just do whatever they want with the hard work or others, as if getting your wok used in a commercial is supposed to be taken as a compliment or something. Get real man

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 4:09pm

    The bottom line here is that no one asked for permission to use the song. Mca's last wishes were to not use their music for advertizing. Remember just after his death when the Bestie boys brought up a lawsuit aginst a Dj that used their music as a "tribute" only it was at a huge show for redbull or something other? its about the music being used for advertisment and following a friends last wishes. If it was you and soneone ripped off what you had worked hard on I'm sure the feeling would be diffrent. It's not my music so the only fair use of it it wat the creators and owners say is fair. I dont want the goverment to come into my home and take it frome me under the guise of it "being fair" . its a relitive term.

     

    reply to this | link to this | view in thread ]

  59.  
    identicon
    Poorlytoldjoke, Nov 24th, 2013 @ 4:29pm

    Re: Re:

    Umm. This isn't a parody. This is advertisement. It's a HUGE difference. The idea that fair use extends to using it in an advertisement is ridiculous.

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    thomasanderson, Nov 24th, 2013 @ 4:48pm

    Re:

    It isn't. They claimed all of that was in later years because they felt like douchebags. They used to have strippers in cages on stage too in the 80's but later claimed that that was "making fun" of the misogyny.

     

    reply to this | link to this | view in thread ]

  61.  
    icon
    bugmenot (profile), Nov 24th, 2013 @ 5:48pm

    Oh grow up

    The Beastie Boys' original lyrics were dripping with irony. They aren't male pigs looking to stifle a good message, they are artists rightfully looking to be paid for the use of their original work in an ENTIRELY COMMERCIAL endeavor. The song was used to profit - it wasn't a homegrown YouTube creation with no monetary connections. It happens to be an excellent video with a good message, but that doesn't give it the right to steal someone's music for your product.

    Your article's stance strikes me as trying to drum up gender controversy where there is none in a bid for pageviews. Well, congratulations.

     

    reply to this | link to this | view in thread ]

  62.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 6:15pm

    Wait, GoldieBlox is the plantiff here asking for a declatory judgement. Are any of the remaining Beastie Boys involved in this? Or is this just another case of douchebag lawyers acting on someone's behalf?

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 6:24pm

    Re: Re: Re: Re:

    The music was recorded by the company making the parody. Most of the words, not just a few, were changed. Two things are obvious. First, you did not read the article at all. Second, you didn't bother watching the video. Regardless, fair use would cover this just for the social commentary being made.

     

    reply to this | link to this | view in thread ]

  64.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 6:26pm

    Re: Re: Re:

     

    reply to this | link to this | view in thread ]

  65.  
    icon
    nasch (profile), Nov 24th, 2013 @ 6:38pm

    Re: Re: Re:

    This isn't a parody. This is advertisement.

    Why do you think those are mutually exclusive?

    The idea that fair use extends to using it in an advertisement is ridiculous.

    Case law disagrees with you. Commercial use (any kind of commercial use, whether advertisement or something else) definitely can be fair use.

     

    reply to this | link to this | view in thread ]

  66.  
    icon
    nasch (profile), Nov 24th, 2013 @ 6:39pm

    Re: Re: it's an Advertisement!

    no contradiction, creating a parody is free speech and fair use.
    exploiting a parody is different thing entirely.


    Where are you getting that? Is that in the copyright statute somewhere, or a court decision, or what?

    However, since this new creation uses the title and melody of the Beastie Boys song, it requires their permission for the publishing license.

    Not if it's fair use.

     

    reply to this | link to this | view in thread ]

  67.  
    icon
    nasch (profile), Nov 24th, 2013 @ 6:42pm

    Re:

    The bottom line here is that no one asked for permission to use the song.

    That's how fair use works: you don't have to ask for anybody's permission.

     

    reply to this | link to this | view in thread ]

  68.  
    icon
    nasch (profile), Nov 24th, 2013 @ 6:43pm

    Re: Oh grow up

    The song was used to profit - it wasn't a homegrown YouTube creation with no monetary connections.

    That does not preclude it from being fair use, and therefore freeing the creators from any obligation to either ask for permission or share revenue.

    that doesn't give it the right to steal someone's music for your product.

    Nobody stole anything.

     

    reply to this | link to this | view in thread ]

  69.  
    identicon
    obat pelangsing cepat, Nov 24th, 2013 @ 6:51pm

    wsc biolo

    Also, commercial or advertising use doesn't necessarily negate the fair use defense.

     

    reply to this | link to this | view in thread ]

  70.  
    icon
    Karl (profile), Nov 24th, 2013 @ 7:12pm

    Re: Re: it's an Advertisement!

    However, since this new creation uses the title and melody of the Beastie Boys song, it requires their permission for the publishing license.

    If the use of the title and melody is fair use, then it requires neither permission nor licensing. Fair use is a limitation on the rights of the copyright holder; making requirements of fair uses is not their legal right.

    Parodies are a huge part of music publishing and it's standard for the parodist to split credit and income with the original writers.

    Whatever "gentleman's agreements" the industry has, they are just that. They are not based on copyright law, and nobody else is required to abide by them. Hell, those in the industry are not required to abide by them. That's what the "Pretty Woman" case was all about: 2 Live Crew did not get permission, nor license anything, and certainly did not split the income with the rights holders for Roy Orbison's song.

     

    reply to this | link to this | view in thread ]

  71.  
    icon
    Karl (profile), Nov 24th, 2013 @ 7:14pm

    Re: Re: Beastie Boys are right

    Failing to defend your ownership of intellectual property can void your right to future protection.

    No, it can't, at least not with copyright. There is no "use it or lose it" with copyright. (You're probably thinking of trademarks.)

     

    reply to this | link to this | view in thread ]

  72.  
    icon
    Karl (profile), Nov 24th, 2013 @ 7:22pm

    Re:

    It's not my music so the only fair use of it it wat [sic] the creators and owners say is fair.

    This is exactly the opposite of what fair use is.

    Fair uses of someone else's work do not require licensing, or permission, and are legal even if the original copyright holder explicitly wishes that the fair use not exist.

    That's because fair uses are totally outside the rights a copyright holder has in his/her work. People can make fair uses of your work, and there's not a goddamn thing you can do about it.

    That's because copyright does not exist to give control to copyright holders; it exists to promote the production and distribution of artworks. Fair uses are exactly such artworks. That's why it's "fair:" if they weren't allowed, copyright wouldn't fulfill its purpose (and also be unconstitutional under the First Amendment.) It's why fair use has been a part of common law since copyright was invented.

     

    reply to this | link to this | view in thread ]

  73.  
    identicon
    Pavel, Nov 24th, 2013 @ 7:26pm

    Re: it's an Advertisement!

    Great point, thank you

     

    reply to this | link to this | view in thread ]

  74.  
    icon
    Stevo (profile), Nov 24th, 2013 @ 8:01pm

    2 Live Crew settlement

    Can you read?
    or do you just repeat what other people tell you?
    2 Live Crew DID ultimately get permission, DID license and certainly DID split the income with the rights holders for Roy Orbison's song.
    Here are the facts:
    2 Live Crew asked for permission, offering to license Pretty Woman, and offered ALL credit and publishing income PLUS a fee to the the publishers of Roy Orbison's song.
    When this generous offer was refused, (racism possibly), 2 Live Crew took spectacular financial risk by releasing it anyway. They credited the original writers.
    It was never their intention to deny the writers credit or income.
    When the resulting lawsuit became inconclusive the two parties settled out of court.
    "Under terms of the settlement, Acuff-Rose dismissed its lawsuit of infringement against the group while 2 Live Crew agreed to license the sale of their version of the Roy Orbison song. "
    Here is a simplified synopsis of the case from a legal website:
    "The trial court ruled that the 2 Live Crew version is a parody, that parody is a form of criticism and comment, and that it is therefore "fair use" and protected from infringement suits. Acuff-Rose appealed this ruling.
    The next court up the ladder, the 5th Circuit Court of Appeals, agreed with Acuff-Rose, holding that the purpose of the 2 Live Crew version was not comment or criticism, but to make money, and that so much of the original song was copied, (particularly the repeating bass riff which is the song's hook) that it was not a protected fair use. 2 Live Crew appealed to the Supreme Court. Despite what you may have heard or read, the Supreme Court did not resolve the case by ruling that 2 Live Crew's parody is fair use. Rather, the Court ruled that parody can be a form of protected fair use, and then sent the case back down to the trial court to determine whether this particular parody is, in fact, fair use."

     

    reply to this | link to this | view in thread ]

  75.  
    identicon
    g, Nov 24th, 2013 @ 10:10pm

    This isn't a parody, this is advertising for a company. The artists in this case have every right to protect their intellectual property. See Tom Waits is a good example of someone who defends his work very litigious. This toy company should have gone through the proper channel before creating this commercial. Also pre-early 90's there were very weak laws protecting sampling, it was literally the wild west. Now you have to credit everyone.

     

    reply to this | link to this | view in thread ]

  76.  
    icon
    That One Guy (profile), Nov 24th, 2013 @ 10:21pm

    Re: 2 Live Crew settlement

    Despite your attempted insult, you probably should have read your own evidence a bit more, as it shoots your own argument down.

    "The trial court ruled that the 2 Live Crew version is a parody, that parody is a form of criticism and comment, and that it is therefore "fair use" and protected from infringement suits.

    So first court agrees that the 2LC version qualifies as a parody, and therefor protected under Fair Use.

    Second court feels that the 2LC version uses too much of the original to qualify as parody, and therefor isn't a parody, hence not protected under Fair Use.

    SC does their usual and made a narrow ruling(avoiding making a ruling about the specifics of the case, despite the court-ruling split which they could have resolved. Guess they didn't feel like working that day), saying that parodies are protected under Fair Use, but then kicking the case back down to determine whether or not the song in question qualified.

    The fact that they 'settled' rather than continued fighting, likely has almost nothing to do with whether or not they thought their version was legally protected(obviously they did if they were willing to take it up with the SC), and more to do with limiting what was likely increasingly insanely high legal fees.

     

    reply to this | link to this | view in thread ]

  77.  
    identicon
    Anonymous Coward, Nov 24th, 2013 @ 11:00pm

    not fair use... its an advertisment

    simple really.. even TD can work that one out !!!!

     

    reply to this | link to this | view in thread ]

  78.  
    identicon
    Dabitch, Nov 24th, 2013 @ 11:24pm

    Did Beastie Boys really send a letter to Goldieblox? Can someone prove it?

    Has anyone seen the letter Beastie Boys supposedly sent to Goldiebblox? It's not attached to the suit. Does it exist?

     

    reply to this | link to this | view in thread ]

  79.  
    icon
    Mike Masnick (profile), Nov 24th, 2013 @ 11:55pm

    Re: it's an Advertisement!

    Corporations do not have the right to use songs in advertising without the permission of the songwriters!

    Yes, they do, if it's fair use.

    Does Masnick truly believe corporations are super entities that can ignore the laws the rest of us have to follow?

    No, I believe that they get to follow the same laws as everyone else, and that includes fair use. You're the one suggesting that companies don't get fair use, but you're wrong.

     

    reply to this | link to this | view in thread ]

  80.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 12:29am

    Beaties?

     

    reply to this | link to this | view in thread ]

  81.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 12:55am

    Re: not fair use... its an advertisment

    You have no idea what you're talking about.

     

    reply to this | link to this | view in thread ]

  82.  
    icon
    Stevo (profile), Nov 25th, 2013 @ 2:27am

    Re: Re: 2 Live Crew settlement

    What argument? I didn't comment on fair use. I only gave you the facts that contradict the 3 elements of your statement:
    "2 Live Crew -did not get permission,
    -nor license anything,
    -and certainly did not split the income with the rights holders for Roy Orbison's song."
    You are WRONG an every count.
    I can go throughout it again but perhaps since you can't admit you are wrong maybe it's too humiliating for you?
    -2 Live Crew asked for permission, and ultimately got it.
    -they DID license the song
    - they DID split income

     

    reply to this | link to this | view in thread ]

  83.  
    identicon
    a-lyric, Nov 25th, 2013 @ 5:45am

    Intellectual property, but not for writers

    The whole debate is hypocritical. Goldieblox did not say, "Hey, as social commentary, let's make a parody of the lyrics of Beastie Boys. That would be a worthwhile statement". They said, "We have to increase brand awareness. Here's a budget to spend on an ad so that we can find investors and sell more boxes of toys". Then they said, "The idea is to empower girls". And that led to the choice of the BB track - not the other way round. So calling it a parody is a bit easy; it's an ad.

    At a guess, their products are patented. Would they be OK if a Chinese company did a parody product and sold them back into the market here? I see Goldieblox are using the Beastie Boys name on the video on YouTube. Could the Chinese company use the Goldieblox name too? I'm hearing it's OK as long as you say it's a parody.

     

    reply to this | link to this | view in thread ]

  84.  
    icon
    Geno0wl (profile), Nov 25th, 2013 @ 5:58am

    I have to actually side with Beastie Boys on this one

    If this was just some random parody on the internet, yeah they would be copyright bullies.
    But this is a commercial out to explicitly "make money".
    If that company did that out of the "goodness of their hearts" and didn't plaster their name all over it, then it would be clear cut Fair Use. Or maybe if it was openly parody where the express purpose of the parody itself wasn't for commercial benefit(like SNL or parody websites).
    As is, it is pretty clear infringement IMO.

     

    reply to this | link to this | view in thread ]

  85.  
    identicon
    DyoD, Nov 25th, 2013 @ 6:00am

    Law

    This isn't a political issue, but rather it is a legal one. The fact of the matter is the song they used was copyrighted and apparently used that song before they had permission. Honestly, when the company was drawing up the storyboard for the advertisement, they should have made the proper calls and gained permission to use that song.

    Advertising isn't fair use, especially when this was designed and virally marketed as "controversial." I'm not that sure what's controversial about it, there are plenty of female engineers, scientists, mathematicians, etc. If anyone is surprised that women have broken out of their past roles, then they should be looking at their own bigotry rather than praising commercials.

     

    reply to this | link to this | view in thread ]

  86.  
    identicon
    Ogre, Nov 25th, 2013 @ 6:49am

    Beastie Boys did not sue, GoldieBlox did.

    According to a comment from Beastie Boys reps directly to huffington post :
    http://www.huffingtonpost.com/2013/11/24/beastie-boys-goldieblox-girls-copyright-infringement-_n_43 30583.html

    "There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys."

     

    reply to this | link to this | view in thread ]

  87.  
    icon
    Gwiz (profile), Nov 25th, 2013 @ 7:17am

    Re: Law

    This isn't a political issue, but rather it is a legal one.

    Right.


    Advertising isn't fair use

    But that's not true if you are actually looking at this as a legal issue. Commercial use of a work can absolutely be fair use according existing statutes and case law.

     

    reply to this | link to this | view in thread ]

  88.  
    icon
    Gwiz (profile), Nov 25th, 2013 @ 7:21am

    Re:

    not fair use... its an advertisment
    simple really.. even TD can work that one out !!!!



    Apparently a bit too complex for you, because commercial use of works can most definitely be considered fair use according to the courts.

     

    reply to this | link to this | view in thread ]

  89.  
    icon
    Kenbojoe (profile), Nov 25th, 2013 @ 7:23am

    Misogyny is a bitch.

     

    reply to this | link to this | view in thread ]

  90.  
    icon
    jupiterkansas (profile), Nov 25th, 2013 @ 7:31am

    Re: Re: Re: Re:

    Yes, and Weird Al is commercial use too. He's just selling himself.

     

    reply to this | link to this | view in thread ]

  91.  
    icon
    jupiterkansas (profile), Nov 25th, 2013 @ 7:34am

    Re: I have to actually side with Beastie Boys on this one

    A parody on Saturday Night Live is commercial use, the same as using it in a commercial for a business. Parody is fair use no matter what the parody is being used for.

     

    reply to this | link to this | view in thread ]

  92.  
    icon
    jupiterkansas (profile), Nov 25th, 2013 @ 7:36am

    Re:

    It can be a parody AND an advertisement.
    Also pre-early 90's there were very weak laws protecting sampling, it was literally the wild west. Now you have to credit everyone.

    And this is a bad thing!

     

    reply to this | link to this | view in thread ]

  93.  
    icon
    jupiterkansas (profile), Nov 25th, 2013 @ 7:41am

    Re: Remake of "Fight For Your Right"

    Perhaps you haven't heard of compulsory licensing?

    I can record any song I like without asking permission and I only have to pay a set fee - the same fee everyone else pays. That is the correct way to do things.

    Also, compulsory licenses don't include parodies - because parodies are fair use.

     

    reply to this | link to this | view in thread ]

  94.  
    icon
    That One Guy (profile), Nov 25th, 2013 @ 7:42am

    Re: Re: Re: 2 Live Crew settlement

    What argument? I didn't comment on fair use. I only gave you the facts that contradict the 3 elements of your statement:

    Yeah, about that... maybe point out where I said any of that, before again attempting to insult me, because I can't find a single mention I made to any of those 'elements' you're attributing to me.

    My comments on this particular article so far have been variations on 'The song in the article is almost certainly fair use', 'Parody enjoys fair use defenses', and 'Whether a work is considered parody does not hinge on whether or not money is being made from it', you're the one that brought up the 2LC issue.

    The confusion might be due to you viewing the comments in Flattened, rather than Threaded mode, and if so, you should consider swapping, threaded makes following the various replies a lot easier.

    As for your points, you left a few out:

    -2 Live Crew asked for permission, and ultimately got it.

    After three (costly) court battles, the last of which overturned the second, meaning the first, which said that their song did qualify as fair use, stood.

    -they DID license the song

    See above.

    - they DID split income

    Again, see above.

    Additionally, on this point I'd be interested to know where you get that particular bit of information, since the wikipedia article on the case says that 2LC agreed to license the song in question in exchange for the lawsuit being dropped, but whether they actually paid at all is unknown, as well as any extra terms like 'splitting the profits'.

    Saying 'they settled, so obviously they were wrong' is ridiculous, and ignores just how insanely expensive going to court (for the fourth time this this instance) is, a fact that makes many fold even when they are fully within the law.

    In fact, reading the wikipedia article on the case in question, the SC pretty thoroughly demolished the appeal's court ruling, and in fact found that the song fulfilled three out of the four 'fair use' factors, with the exception of the second, feeling that it didn't really apply to parodies.

    While they did kick the case back down, their ruling said fairly clearly exactly what many have been saying, that whether or not a work is for profit or not, does not determine whether or not it enjoys a Fair Use defense, but is instead just one factor to be considered.

    Article in question, if curious:
    http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

     

    reply to this | link to this | view in thread ]

  95.  
    icon
    Nick (profile), Nov 25th, 2013 @ 7:46am

    So I guess all of this drama could have been avoided if GoldieBlox had just paid their ASCAP/BMI feeds.

     

    reply to this | link to this | view in thread ]

  96.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 7:58am

    Re: Re: Re: Re:

    No, it's not a complete copy. Several elements of the original composition are gone. Furthermore more 'a few words changed' is ludicrously disingenuous. You know full well the words have shifted so dramatically the entire meaning of the song has changed (which is true even if you think the original was satire to begin with).

     

    reply to this | link to this | view in thread ]

  97.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 8:02am

    Re: Re: Re:

    Yes it is. The idea that being used in an advertisement precludes it from being a parody is what's ridiculous.

     

    reply to this | link to this | view in thread ]

  98.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 8:10am

    Re: Re: it's an Advertisement!

    The original artist's right end right after you concluded the new song is a fair use.

    Your 'standard' is bullshit. The whole point of fair use is that you don't need permission or to give any money to the 'original writes.'

     

    reply to this | link to this | view in thread ]

  99.  
    icon
    rawcookie (profile), Nov 25th, 2013 @ 8:11am

    Re: Re: You gotta fight...

    This is from Weird Al's website.

    Does Al get permission to do his parodies?

    Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it's important to maintain the relationships that he's built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties.

     

    reply to this | link to this | view in thread ]

  100.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 8:13am

    Re: Beastie Boys are right

    It is when the new lyrics are a parody of the original lyrics.

     

    reply to this | link to this | view in thread ]

  101.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 8:14am

    Re:

    Are you not aware that 'fair use' isn't just the author appealing to a sense of fairness but is a codified exception to copyright in US law? It sure sounds like it...

     

    reply to this | link to this | view in thread ]

  102.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 8:17am

    Re:

    Love your ludicrous analogy of the government coming into your home and taking something from you being used to describe a situation where what's actually happening is the government doesn't do this to someone else. When copyright is exercised the rights of property holders are curtailed by the government to create an exclusive monopoly. When fair use is exercised no ones rights the government does nothing and just lets what would normally happen without their intervention happen.

     

    reply to this | link to this | view in thread ]

  103.  
    identicon
    AJ Lorenzo, Nov 25th, 2013 @ 9:28am

    They're notoriously hypocritical. Remember when they crusaded against Prodigy's Smack My Bitch Up? What a joke. It annoys me when The Beastie Boys claim their old bad boy image was just a parody. It was real and they used it to make millions.

     

    reply to this | link to this | view in thread ]

  104.  
    identicon
    Bas Grasmayer, Nov 25th, 2013 @ 10:34am

    It appears now that the Beastie Boys asked for explanation from the makers, since they decided long ago to not let their music be featured in any commercials.

    As for the company: I figure they did this to provoke more publicity... and they definitely succeeded.

     

    reply to this | link to this | view in thread ]

  105.  
    identicon
    Crabby McGruff, Nov 25th, 2013 @ 10:49am

    Re: Re: You gotta fight...

    Weird Al gets permission from the rights owner(s) for all songs he parodies: http://www.weirdal.com/faq.htm.

     

    reply to this | link to this | view in thread ]

  106.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 11:44am

    Re: Re: Remake of "Fight For Your Right"

    A compulsory license provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of arbitration. In essence, under a compulsory license, an individual or company seeking to use another's intellectual property can do so without seeking the rights holder's consent, and pays the rights holder a set fee for the license.

     

    reply to this | link to this | view in thread ]

  107.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 11:45am

    Re: Re: Re: Remake of "Fight For Your Right"

    What is the fee?

     

    reply to this | link to this | view in thread ]

  108.  
    identicon
    sakusakusakura, Nov 25th, 2013 @ 12:10pm

    I think the Beastie Boys are doing the right thing. The Rube Goldberg machine in the video wasn't really made by the little girls anyway.

     

    reply to this | link to this | view in thread ]

  109.  
    icon
    Internet Zen Master (profile), Nov 25th, 2013 @ 12:28pm

    Re: Re: Re:

    Fair enough.

    Guess I've just become sensitive to the whole "asking permission" concept now that the artist/writer in me woke up last year and I started writing Creepypasta stories.

    There seems to be an unwritten rule on artist sites like DeviantArt where it's considered normal to ask the creator for permission to use a character instead of just using it and crediting the original creator afterward. I've had people ask me for permission to use my characters in their stories (I let the. So I guess my feeling that respecting MCA/Adam Yauch's wishes over fair use stem from the strange, "permission mentality" so frequent in those places.

    Fair Use still trumps permission culture any day of the week in my book.

     

    reply to this | link to this | view in thread ]

  110.  
    icon
    Karl (profile), Nov 25th, 2013 @ 1:17pm

    Re: 2 Live Crew settlement

    Can you read?
    or do you just repeat what other people tell you?


    I'm going to assume this is directed at me, even though you didn't quote me, nor even reply in-thread.

    Yes, I can read. And so can anyone else, if they want:
    Campbell v. Acuff-Rose Music decision

    It was never their intention to deny the writers credit or income.

    Whether or not that was their intention, they did in fact use the song without permission (and without licensing). They did not pay a dime until "almost a year later, after nearly a quarter of a million copies of the recording had been sold" (according to the court documents).

    The "credit" thing is a non-starter. The commercial was not claiming that the Beasties didn't write the original song that was being parodied. And, incidentally, "credit" has little to do with "infringement" - you can infringe on copyright while crediting the original, and you can fail to infringe on copyright even if you're outright plagiarizing (look at all those "term papers for sale" sites). The fact that you confuse the two makes me wonder if you "just repeat what other people tell you."

    2 Live Crew DID ultimately get permission, DID license and certainly DID split the income with the rights holders for Roy Orbison's song. [...] When the resulting lawsuit became inconclusive the two parties settled out of court.

    That's some revisionist history. The Supreme Court found that it was almost certainly fair use, siding with 2 Live Crew on every count. It remanded merely to determine some details that were not initially discovered. But nobody thinks it would not have been found to be fair use by the lower courts - all of their arguments against it had been explicitly overturned by the Supreme Court.

    It is against this backdrop that the parties settled. Acuff Rose (the copyright holder for Orbison's song) lost pretty conclusively, but rather than prolong an expensive court battle, Campbell et. al. decided to take the cheaper option and settle by licensing the song.

    The settlement isn't public, but I doubt very much that the licensing fees approached anywhere near half of the income ("split the income") for the song.

     

    reply to this | link to this | view in thread ]

  111.  
    icon
    Karl (profile), Nov 25th, 2013 @ 1:25pm

    Re:

    So I guess all of this drama could have been avoided if GoldieBlox had just paid their ASCAP/BMI feeds.

    If those applied to sync licenses, then yeah, they could have. But they don't. ASCAP/BMI/SoundExchange handles performance royalties (streaming, radio, and live performances); Harry Fox (for the most part) handles mechanical licenses (e.g. putting the song on CD). There is no such agency for sync licensing (synchronizing a song to a video), so they couldn't do that.

     

    reply to this | link to this | view in thread ]

  112.  
    identicon
    Crabby McGruff, Nov 25th, 2013 @ 1:26pm

    Re: Re: it's an Advertisement!

    Mike, you're absolutely right that the commercial nature of the use doesn't in itself negate the fair use defense, but even the 2 Live Crew decision itself says that the commercial nature is a fact to consider, and that it cuts against a finding of fair use. And, contrary to what many comments here seem to suggest, assuming the song were held to constitute a parody, that doesn't end the inquiry--again, even the 2 Live Crew decision says that parodies may not be fair use. In fact, the court explicitly refused to create a presumption that parodies are fair use, pushing everything instead to the four-factor inquiry. And in this case, I think that inquiry makes the fair use claim here look pretty shaky.

    On the first factor, I'd agree the use here is transformative, sure, but it is also commercial in a way that is much more egregious than what was at issue in 2 Live Crew (and most other parody cases). In the 2 Live Crew case, the song was the whole enchilada--it was, itself, a work of art that asserted its own raunchiness in part by parodying what the group saw as the cheesy, wholesome, white-bread nature of the original. GoldieBlox is now trying to shoehorn itself into that same category by claiming that, with this song, they set out to parody the Beastie Boys in order to break down gender stereotypes.

    But does anyone actually believe that? "Girls" was a trifle at the time and has largely been forgotten over the almost 30 years since it came out--what bona fide social-commentary-related purpose could possibly be served by dredging it up and taking aim at it now? (Compare to Pretty Woman, which was and still is a universally known classic.) It seems pretty clear to me, and I think would also be clear to any trier of fact in this case, that this is not some standalone commentary or work of art by the company. This originated with them having a product they wanted to sell and needing a catchy ad to help sell it. "Girls" has an ear-worm-y, child-like melody and repeats the word "girls" in every line. That's undoubtedly why they used the song. Changing the lyrics to drive home the company's mission is no doubt creative and supports transformativeness, but let's not pretend that that goal isn't secondary to using the catchy parts of the song to sell products that really have no relationship to the Beastie Boys' song.

    Point is, the first factor is something of a wash--the work is transformative, yes, but commercial use always cuts against fair use and this use--marketing products that have little to nothing to do with the Beastie Boys song that is the subject of the parody--is much more egregious than the mere sale of the parodic piece of art itself. GoldieBlox's attempt to paint this as some sort of more noble social commentary--a brilliant PR move, surely, and one that seems to be working--looks to me like little more than litigation-driven post hoc rationalization.

    The second factor probably carries little weight here (like in the 2 Live Crew case), but if anything it would cut against fair use since it's taking from a creative, rather than a factual, work. The third factor cuts against fair use because GoldieBlox takes the "heart" of the work (the plinky, toy-piano-like melody, the childrens'-song-like vocal melody, and the repeating "girls" refrain) and goes on at some length, using basically the whole song except the changed lyrics. And the fourth is probably the most damning since there is plainly a market for licensing songs for use in commercials--in fact, that's one of the primary ways musicians make a living these days--even if it's a market in which the Beastie Boys choose not to participate.

    So yes, on a superficial level it's correct to say that corporations have fair use rights just as individuals do. But fair use is a very fact-intensive inquiry, and surely uses made by corporate entities should be (and are!) examined in the context of the corporation's commercial purposes. A record company selling a song that parodies another work is very different, to my mind, from a toy company (even if it is a small company with laudable goals!) hawking its products by free-riding on the creative elements of another work, even if it parodies the original in the process.

     

    reply to this | link to this | view in thread ]

  113.  
    identicon
    Bruce, Nov 25th, 2013 @ 1:30pm

    Re: Re: Re: You gotta fight...

    But what of the original artists whose work Weird Al used to make money?

    Your analogy is flawed on a ton of levels.

     

    reply to this | link to this | view in thread ]

  114.  
    icon
    Stevo (profile), Nov 25th, 2013 @ 2:27pm

    'fair use' rainbow

    oh you Libertarian leprechauns are so cute!
    always looking for the pot o gold at the end of the 'fair use' rainbow.

     

    reply to this | link to this | view in thread ]

  115.  
    icon
    nasch (profile), Nov 25th, 2013 @ 3:15pm

    Re: Re: Re: it's an Advertisement!

    And the fourth is probably the most damning since there is plainly a market for licensing songs for use in commercials--in fact, that's one of the primary ways musicians make a living these days--even if it's a market in which the Beastie Boys choose not to participate.

    The fourth factor is not whether there's a market, but the use's effect on that market. Since it's pretty obvious this seller of creative toys for girls would never even have considered setting their commercial to the original song, clearly that effect is (at worst) zero. It could even have a beneficial effect by driving more interest in the original.

    I don't agree with your assessment of the "nature of use" factor either - I find the transformativeness much more important than the commercial aspect of the use. But that would be something for a court to decide.

     

    reply to this | link to this | view in thread ]

  116.  
    identicon
    John Smith, Nov 25th, 2013 @ 3:30pm

    Re: it's an Advertisement!

    Corporations do not have the right to use songs in advertising without the permission of the songwriters!

    So the company should talk to the actual songwriters, not the sampling thieves?

     

    reply to this | link to this | view in thread ]

  117.  
    identicon
    Jumbybird, Nov 25th, 2013 @ 3:59pm

    "Beastie" what now?

     

    reply to this | link to this | view in thread ]

  118.  
    identicon
    Crabby McGruff, Nov 25th, 2013 @ 4:30pm

    Re: Re: Re: Re: it's an Advertisement!

    This is not how courts have interpreted this factor though. Most courts would find the market here to be the market for granting a license to use the work for advertising purposes--here the license would not be, as you suggest, to use the original song but rather to create a derivative work--and the effect on that market of doing so without permission to be substantial.

    The "driving more interest" argument is a favorite of copyright activists, but I don't think it's gotten much traction in court.

    As a purely academic matter, I, like many people, am skeptical that the fourth factor really provides any useful guidance for the analysis--basically, people (including courts) define the "market" at whatever level of generality suits their argument and, lo and behold, they get the answer for the fourth factor that aligns with the rest of their analysis. But that's not what the cases say.

     

    reply to this | link to this | view in thread ]

  119.  
    icon
    Karl (profile), Nov 25th, 2013 @ 6:15pm

    Re: Re: it's an Advertisement!

    Corporations do not have the right to use songs in advertising without the permission of the songwriters!

    They do, however, have the right to parody songs (in advertising or not) without the permission of the songwriters.

     

    reply to this | link to this | view in thread ]

  120.  
    identicon
    Anonymous Coward, Nov 25th, 2013 @ 7:25pm

    that remains to be seen...

     

    reply to this | link to this | view in thread ]

  121.  
    icon
    nasch (profile), Nov 25th, 2013 @ 7:34pm

    Re: Re: Re: Re: Re: it's an Advertisement!

    Most courts would find the market here to be the market for granting a license to use the work for advertising purposes--here the license would not be, as you suggest, to use the original song but rather to create a derivative work--and the effect on that market of doing so without permission to be substantial.

    Except that as others have pointed out and I didn't think of before, there is no market for licensing this song for a commercial, whether the original or a derivative, because the Beastie Boys would be unwilling to grant any such license. So there can't be any effect on the market.

     

    reply to this | link to this | view in thread ]

  122.  
    identicon
    Mal, Nov 26th, 2013 @ 3:14am

    What's amazing is all the zombies who take the side of a corporation against the artists. What a bunch of stooges, you're all just lined up and bent over with a stoned smile on your face. You don't deserve art or music.

     

    reply to this | link to this | view in thread ]

  123.  
    identicon
    Miesals, Nov 26th, 2013 @ 4:14am

    wishes of a dead man

    This isn't about copyright or fair use. MCA explicitly in his will stated that none of his work after death may be used in advertisement. It doesn't matter how cute the kids are, how good the parody is or how good the message is. The only thing that matters is that it's an advertisement.

    If a company wants to use the work of an artist they have to get permission. The artist in question, before his death, said no to all the requests regarding the use of his work in advertisement, and I believe his wishes should be respected.

     

    reply to this | link to this | view in thread ]

  124.  
    icon
    Stevo (profile), Nov 26th, 2013 @ 6:42am

    Re: Re: Re: Re: 2 Live Crew settlement

    Thanks for the tip about threaded mode, I sincerely apologize for sending comments to you that were meant for someone else.
    I never said 'they settled, so obviously they were wrong' . Why attribute that to me in quotation marks? It doesn't represent my opinion or sentiment.
    The dismissal of the infringement case against was not just a victory for 2 Live Crew but a step forward for free expression. But there is a great deal of mythology around the origin and outcome of the case. Perhaps 2 Live Crew were overly generous in settling , just as they were overly generous in initially offering ALL publishing income to Orbison's publishers. I suspect that was the same deal they gave to Lieber and Stoller for "Yakety Yak' the year before.
    The amount of cash in the settlement is not known but Orbison's publishers continue to receive royalties.

     

    reply to this | link to this | view in thread ]

  125.  
    icon
    Gwiz (profile), Nov 26th, 2013 @ 7:05am

    Re:

    What's amazing is all the zombies who take the side of a corporation against the artists.


    No. People here are taking the side of the law. I don't necessarily agree that this situation is "right", but it is the state of copyright these days.

    Perhaps you should join the people here looking to fix copyright laws as opposed to name calling. Just sayin'

     

    reply to this | link to this | view in thread ]

  126.  
    icon
    nasch (profile), Nov 26th, 2013 @ 7:16am

    Re: wishes of a dead man

    If a company wants to use the work of an artist they have to get permission.

    Read this and see if you can understand why it doesn't matter what Yauch's will says:

    http://www.techdirt.com/articles/20131125/10182325360/beastie-boys-say-they-dont-want-music-ads -fair-use-doesnt-care.shtml

     

    reply to this | link to this | view in thread ]

  127.  
    icon
    Gwiz (profile), Nov 26th, 2013 @ 7:21am

    Re: wishes of a dead man

    This isn't about copyright or fair use. MCA explicitly in his will stated that none of his work after death may be used in advertisement.

    But it IS about copyright and fair use. What MCA specified in his will is immaterial to the legal issues in play here.



    The only thing that matters is that it's an advertisement.

    Not in the eyes of the law.



    If a company wants to use the work of an artist they have to get permission.

    That's not a completely true statement. It may how you wish it to be, but that's not what the current laws say.



    The artist in question, before his death, said no to all the requests regarding the use of his work in advertisement, and I believe his wishes should be respected.

    Once again, you are projecting things onto copyright that just do not exist. Fair use has nothing to do with the creators wishes alive or dead. That is not how it works.

     

    reply to this | link to this | view in thread ]

  128.  
    icon
    Gwiz (profile), Nov 26th, 2013 @ 7:35am

    Re: Re: Re: Re: Re: Re: it's an Advertisement!

    Except that as others have pointed out and I didn't think of before, there is no market for licensing this song for a commercial, whether the original or a derivative, because the Beastie Boys would be unwilling to grant any such license. So there can't be any effect on the market.



    Not only that, but the courts have concluded that market harm from parodies or negative reviews are pretty much immaterial anyways. Wikipedia sums it up with this sentence:
    Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism. Source

     

    reply to this | link to this | view in thread ]

  129.  
    icon
    Gwiz (profile), Nov 26th, 2013 @ 7:46am

    Re: 'fair use' rainbow

    oh you Libertarian leprechauns are so cute!

    Yes, ad-homs really help your argument.....not.


    always looking for the pot o gold at the end of the 'fair use' rainbow.

    Fair Use is not a "rainbow". It's an integral part of copyright law that allows copyright to exist in the United States in the first place. Without Fair Use, copyright most likely would be declared unconstitutional, because it would run in conflict with the First Amendment's guarantee of Free Speech.

     

    reply to this | link to this | view in thread ]

  130.  
    icon
    Stevo (profile), Nov 26th, 2013 @ 9:25am

    Re: Re: 'fair use' rainbow

    OK, just having fun.
    I see the value of 'fair use' but I don't think it's a magical answer to everything and it has the capacity to enrage artists because it can be so UNFAIR.
    On the other hand existing copyright law has too often stifled free expression.
    Into that breech we turn to 'fair use' but its not a very efficient or streamlined process. Isn't there an expression 'don't make a federal case out of it?''
    The purpose of compulsory licenses are to simplify and speed up dissemination of content. It's what created the broadcast industry which has been the true mainstay of musical and visual art of the 20th century.
    The concept of 'permission free' needs to be added to copyright practice so that anyone can sample or quote from existing music to create a new copyright that splits credit and revenue with the holders of the original property.

     

    reply to this | link to this | view in thread ]

  131.  
    icon
    jupiterkansas (profile), Nov 26th, 2013 @ 10:22am

    Re: Re: Re: Re: Remake of "Fight For Your Right"

    It varies based on multiple factors, but it's not beyond reason. I paid about $50 once to sell a cover song online, and never had to say "pretty please."

    Unlike every other artform, the music industry has always thrived on copying - singing and recording other people's songs - and even more so back in the 40s and 50s. Without compulsory licensing, copyright's permission system would have ruined the music business. Imagine the Beatles having to ask permission to record Chuck Berry? And imagine if Chuck Berry had said no.

     

    reply to this | link to this | view in thread ]

  132.  
    icon
    jupiterkansas (profile), Nov 26th, 2013 @ 10:23am

    Re:

    Which corporation? EMI? Capitol Records?

    You talk like the Beastie Boy's song doesn't exist anymore because someone made fun of it.

     

    reply to this | link to this | view in thread ]

  133.  
    identicon
    Crabby McGruff, Nov 26th, 2013 @ 10:41am

    Re: Re: Re: Re: Re: Re: Re: it's an Advertisement!

    Guys, I'm sorry, but Wikipedia citations and wishful argumentation don't change the caselaw, which universally requires examining the fourth factor (even in the case of parody), and which generally doesn't interpret "market" nearly as narrowly as nasch would.

    I am very confident that a court would not say, well, since they choose not to license the song, there's no market; the fact is, they have the legal right to license their songs for ads if they choose to, and the law has to assume that they may at any point choose to do so. So there is a market, even if they're choosing not to participate right now, and using the song without permission harms that market. I don't see how one could argue otherwise with a straight face.

    You can tell from the phrasing of that Wikipedia quote that it was not written by someone with legal training in this area, and the only source it cites is another Wikipedia article. I am a copyright lawyer with plenty of experience in this area. I don't have time to dig up citations, so, sure, you can take it on faith or you can choose not to believe me, but this is what the weight of authority, murky as it may be, currently says.

    Believe me, I don't have a dog in this fight--I personally would like to see courts give fair use real teeth. To take an apt example, I absolutely think that the sort of sampling the Beastie Boys did on Paul's Boutique should be considered fair use--almost all of the samples were tiny snippets of the originals, altered and remixed in a highly transformative way that made a truly new and original work.

    But under current law, most of those samples likely did not fall under fair use. And this much more egregious use of a copyrighted work (taking basically the whole song, except the lyrics, and using it to advertise a wholly unrelated product) is very likely not fair use either under current law. I acknowledge it's no slam dunk, but I'm pretty confident that's how this would come out in court.

     

    reply to this | link to this | view in thread ]

  134.  
    icon
    nasch (profile), Nov 26th, 2013 @ 11:14am

    Re: Re: Re: Re: Re: Re: Re: Re: it's an Advertisement!

    I acknowledge it's no slam dunk, but I'm pretty confident that's how this would come out in court.

    That's a perfectly fair position. To me the main issue here is not whether this is fair use - that could go either way. I think the main point is that there are so many people who don't understand what fair use is, and don't realize that depending on how a court decides, GoldieBlox could be permitted to do this despite any objections from the copyright holders. I hope that this story helps educate more people about what fair use is and how it works.

     

    reply to this | link to this | view in thread ]

  135.  
    icon
    Gwiz (profile), Nov 26th, 2013 @ 11:49am

    Re: Re: Re: Re: Re: Re: Re: Re: it's an Advertisement!

    You can tell from the phrasing of that Wikipedia quote that it was not written by someone with legal training in this area, and the only source it cites is another Wikipedia article. I am a copyright lawyer with plenty of experience in this area. I don't have time to dig up citations, so, sure, you can take it on faith or you can choose not to believe me, but this is what the weight of authority, murky as it may be, currently says.


    I cited Wikipedia (and I know it's not a real great legal source) because I don't have the time or resources to dig up citations either.

    The only point I was making is that when the courts have determined that the work is to be considered a parody or a negative review, the forth prong automatically becomes less important. Which makes sense. A parody or a negative review is specifically designed to impair the market of the original. That's part of the intent of such things and the First Amendment protects that kind of speech.

     

    reply to this | link to this | view in thread ]

  136.  
    identicon
    Adam Zand, Nov 27th, 2013 @ 5:45am

    RIP MCA - respect his wishes

    Interesting post and interesting comments above. I will stay out of the legal fray although I should point out that Paul's Boutique was a 1989 disc and the Beasties credited all samples and artists following that album. However my main point is Adam Yauch MCA expressly put in his will and in previous comments that he never wanted Beastie Boys songs to become commercials in any way. The rest of the band agreed and wrote this in documents. I don't think this viral ad is a parody because the original song was a parody of frat boy attitudes and simplified gender stereotypes - it was a dumb throwaway song that in a way made fun of its dumb listeners who didn't get the joke. I think honoring nice guy MCA by removing all Beastie songs from parodies unless the Beasties want to parody their own songs (like the Fight for Right Revisted long form video). RIP MCA - let's work to educate girls about science and career paths in ways that don't steal content and threaten lawsuits.

     

    reply to this | link to this | view in thread ]

  137.  
    icon
    nasch (profile), Nov 27th, 2013 @ 7:19am

    Re: RIP MCA - respect his wishes

    I don't think this viral ad is a parody because the original song was a parody of frat boy attitudes and simplified gender stereotypes

    There can't be a parody of a parody?

    PS nobody stole anything

     

    reply to this | link to this | view in thread ]

  138.  
    identicon
    Anonymous Coward, Nov 27th, 2013 @ 6:45pm

    Re: hmm

    No one's going to believe a word you say, Prenda fanboy.

    horse with no name just hates it when due process is enforced.

     

    reply to this | link to this | view in thread ]

  139.  
    identicon
    Anonymous Coward, Feb 2nd, 2014 @ 7:52pm

    You guys are idiots. If the Beasties allowed this happen without protecting their copyright they would have given up the rights. There is precedent for failing to pursue infringements.

     

    reply to this | link to this | view in thread ]

  140.  
    icon
    nasch (profile), Feb 3rd, 2014 @ 1:09pm

    Re:

    If the Beasties allowed this happen without protecting their copyright they would have given up the rights.

    That is not correct. There is no provision of copyright law that puts a work in the public domain if the copyright holder fails to pursue action against infringers. Though if you want to stick by your claim you could post a reference.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This