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.

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Companies: goldieblox, universal music

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

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140 Comments
Anonymous Coward says:

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.

Karl (profile) says:

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.

That One Guy (profile) says:

Re: 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.

Internet Zen Master (profile) says:

Re: 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.

Anonymous Coward says:

Re: Re: Re:2 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).

Anonymous Coward says:

Re: 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

Anonymous Coward says:

Re: 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”.

Stevo (profile) says:

Re: Re: Re:3 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.

rawcookie (profile) says:

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.

Stevo (profile) says:

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?

Karl (profile) says:

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.

Stevo (profile) says:

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?

Karl (profile) says:

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.

Stevo (profile) says:

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?

That One Guy (profile) says:

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.

Mike Masnick (profile) says:

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.

Crabby McGruff says:

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.

nasch (profile) says:

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.

Crabby McGruff says:

Re: Re: Re:2 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.

nasch (profile) says:

Re: Re: Re:3 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.

Gwiz (profile) says:

Re: Re: Re:4 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

Crabby McGruff says:

Re: Re: Re:5 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.

nasch (profile) says:

Re: Re: Re:6 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.

Gwiz (profile) says:

Re: Re: Re:6 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.

anonymouse says:

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.

Ben S (profile) says:

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.

horse with no name says:

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.

Anonymous Coward says:

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.

nasch (profile) says:

Re: 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.

Stevo (profile) says:

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.

nasch (profile) says:

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.

Karl (profile) says:

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.

DarwinWMedia (profile) says:

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

jupiterkansas (profile) says:

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.

Anonymous Coward says:

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.

jupiterkansas (profile) says:

Re: Re: Re:2 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.

Lloyd says:

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

Anonymous Coward says:

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.

Karl (profile) says:

Re: 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.

Anonymous Coward says:

Re: 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.

bugmenot (profile) says:

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.

nasch (profile) says:

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.

Stevo (profile) says:

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.”

That One Guy (profile) says:

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.

Stevo (profile) says:

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

That One Guy (profile) says:

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.

Stevo (profile) says:

Re: Re: Re:2 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.

Karl (profile) says:

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.

g says:

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.

a-lyric (user link) says:

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.

Geno0wl (profile) says:

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.

DyoD says:

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.

Karl (profile) says:

Re: 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.

Gwiz (profile) says:

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.

Stevo (profile) says:

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.

Gwiz (profile) says:

Re: 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’

Miesals says:

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.

Gwiz (profile) says:

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.

Adam Zand (user link) says:

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.

nasch (profile) says:

Re: 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.

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