1. They would need a sync license if it was a cover of the Beastie Boys song, just as they would need a compulsory license to make the cover. But this doesn't apply to parody, because a parody is not a cover. The compulsory license for a cover prevents them from changing the lyrics. The parody lyrics place this in the realm of fair use, and syncing a video of a fair use song is legal.
2. Changing the lyrics is highly transformative - enough to constitute parody. They also re-recorded their own music (very different from 2 Live Crew which sampled the actual recording). As another poster commented, the disdain for song lyrics here is appalling. The lyrics are the whole point in making this a contender for fair use, just as they are in Weird Al songs (which often replicate the original musically, and change only the lyrics.) He even syncs it to video and tries to make it look like the original. He's been doing this for 30 years without harming the market value of anything he parodies. Quite the opposite effect, actually.
3. First I've heard about needing a sync license for TV. Is that a legal ruling or simply corporate policy? It may not necessarily have anything to do with the fair use case.
Of course, only a judge can make the final call, and I have a feeling that this will never get that far, so ultimately nobody is right or wrong.
First, GoldieBlox PARODIED the Beastie Boys music. They didn't use the Beastie Boys song.
Second, filing for a declaratory judgement that the song is fair use is a shortcut to avoid a lengthy, costly court battle. It's a common thing, because the only way to be certain of fair use is for a judge to declare something is fair use.
Fair use allows you to parody copyrighted works without asking permission. If a judge declares it fair use, there is no copyright infringement and GoldieBlox did nothing wrong legally.
Unfortunately you'll probably never get to hear the song legally, and the fair use issue will never get decided. It will probably get settled with an agreement to not release the song or video ever again.
It's my understanding that when Beastie Boys wrote License to Ill and Paul's Boutique there was no such thing as paying licenses for samples. They just sampled freely without getting licenses and without asking permission.
It's only later that the RIAA came in and (despite fair use) demanded permission and payment for even a second of sampled music, and it's often been noted that Paul's Boutique would cost millions of dollars in licensing fees if it were created today.
So yes, the Beasties are being hypocritical here.
They came from an era when having your music in a TV commercial was the ultimate selling out. That's just not how the world is anymore and it's a dinosaur attitude (I think that attituded died along with Iggy Pop's "Lust for Life"). Apparently it's the attitude of plenty of TechDirt readers too.
Perhaps, but the words in the GoldieBlox song are a parody of the words in the original Beastie Boys song. They didn't just change the words, but they are commenting on the content of the original song, which is the real core issue in this fair use case.
The parody takes the meaning of the original song and does the opposite, making a tune about empowering girls to do things like science and engineering. I'd rather have my daughter listening to it than the original.
Everyone is having an emotional response but where copyright and fair use are concerned that doesn't matter.
Weird Al parodies are even more of a commercial use than using a song in a commercial. In Weird Al's case, his income is directly based on selling the actual song - so recording and selling the song is his commercial venture.
Weird Al's artistic merit has nothing to do with it, and you're denying that the creators of the GoldieBlox commercial have any artistic merit simply because they're making a commercial or are not famous like Weird Al.
Here we ago again with everyone making the same exact wrong arguments they made the last four times this story was on Techdirt.
1. Commercial use is not exclusive to commercials. This seems to the sticking point that's ruffling everyone's feathers. Commercial use includes any product for sale. The Beastie Boys original recording is commercial use by Columbia Records (now owned by Sony). A song in a movie is commercial use. A song playing on the radio is commercial use. A song playing in the grocery store is commercial use. Weird Al parodies are commercial use.
2. The work is transformative. The lyrics were completely rewritten as a parody of the original. If they had licensed the song, they would not have been allowed to rewrite the lyrics.
3. A person's dying wish does not trump the law. Fair use is part of copyright law and allows anyone to do anything with another artist's work within the restrictions of fair use. It doesn't matter if the original artists likes what you do or not. You do not have to please the original artists, you do not have to pay money, and you do not have to ask permission. That's the whole point of fair use. Just because Weird Al asks for permission doesn't mean that's the right thing to do or the legal thing to do.