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.