Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit

from the that's-unfortunate dept

Thought the GoldieBlox vs Beastie Boys fight was over? Nope. While Goldieblox had posted a blog post effectively conceding that it would drop the lawsuit and stop using the song, it appears that they made no move to actually drop the lawsuit (and given how quickly they filed the original lawsuit, it would seem that they could have dismissed it equally quickly). So, now the Beastie Boys have filed their response and countersued on a variety of theories.

Now, I know that many people who initially sided with Goldieblox "switched sides," arguing that this was all a publicity stunt by the company. I think there are two separate issues: whether you like this as a publicity stunt and whether or not the use of the song was infringing. Unfortunately, many people are conflating the two. I agree that it's crass and quite lame to use the legal system as a PR tool, and it certainly doesn't reflect positively on Goldieblox as a company. It's pretty clear they were itching for a legal fight and probably pulled the trigger on filing for declaratory judgment too quickly (though, contrary to the claims of some, filing for declaratory judgment when someone suggests you infringed on their rights is a fairly common practice, and there are plenty of good reasons to do so). But I think that's a separate issue from whether or not the use of the song was infringing -- and it's very important to keep the two issues distinct in thinking about the legal issues here.

Given a variety of factors it's not at all surprising that the Beastie Boys have countersued. They were clearly angry about the use of the song (since they have made it explicit they don't like their music used in advertising) and about how the whole situation went down with the declaratory judgment request being filed so quickly, after their lawyers had sent a basic inquiry. That said, it's still disappointing to see the Beastie Boys decide to ramp up the legal effort here, and it still seems like their case is not a strong one. We've already discussed how the Goldieblox use can be fair use, and that there are multiple legal precedents that support that position. The Beastie Boys counter that this is not fair use at all. If this doesn't get settled (and I'd bet good money that it does get settled), a ton of arguments will get thrown back and forth on this point. I can make what I believe is a very strong argument that this is clearly fair use, while others can counter with arguments why it's not. As with so many fair use cases, unfortunately, the end result is often the emotional decision a judge makes about whether it "feels" like fair use, and then works backwards to make the fair use factors fit the preconceived idea. It's a bit of a crapshoot, even as I think it should clearly be fair use.

The Beastie Boys don't stop there however, adding trademark infringement, unfair competition and publicity rights claims to their counterattack. Frankly, all of these seem incredibly weak. It is true that the original Goldieblox video did put "The Beastie Boys" in the title of the video, which some have suggested may have lead to confusion over whether or not the Beastie Boys supported the campaign. This is mainly the basis for most of these additional claims, but it seems rather weak. There's no denying that the song was a take-off on The Beastie Boys' song "Girls." The question is whether or not it was infringing and whether that take-off is a parody. Stating accurately what the take-off is based on isn't trademark infringement, unfair competition or a violation of the band's publicity rights, as it didn't suggest support or endorsement by the band. It just, accurately, noted that the song was a Beastie Boys song. If the use of the song was fair use, then it's perfectly reasonable, as well, to highlight where the song was from.

Two other interesting points from the lawsuit. First, the Beastie Boys highlight that Goldieblox had created ads doing similar take-off parodies (though, obviously they don't call it that) on other popular songs. But, again, if they are fair use then that doesn't matter. Making the case that this is a pattern of activity only makes a difference if it's not fair use. Second, the Beastie Boys are not messing around when it comes to the remedies sought. Not only do they want an injunction, but they're also asking for an "accounting" of how much Goldieblox made as a result of this campaign, and using that to argue for actual damages from Goldieblox.

We talk a lot about "statutory damages" in copyright law, because that's what most copyright holders seek, in part because they claim it would be too difficult to figure out "actual damages," but mostly because the statutory damages numbers are insanely high (up to $150,000 per infringement). Here, however, it appears that the Beastie Boys and their lawyers smell blood in the water, and recognize that if they can convince the court that the money Goldieblox made from people buying its products after seeing the ad are a form of "damage" to the Beastie Boys, they could potentially collect significantly more money -- all of which they are arguing should be handed over to the band (while reserving the right to go for statutory damages if the end result of that is more):
For an award of the Beastie Boys Parties’ actual damages and lost profits they have sustained as a result of GoldieBlox’s unlawful acts of copyright infringement and to recover from GoldieBlox the gains, profits, and advantages GoldieBlox has obtained as a result of the wrongful conduct alleged herein, in an amount to be determined at trial, or, at their election, an award of statutory damages...
This seems fairly extreme again. Even if we accept that this was a giant publicity stunt, and even if it drove a bunch of sales, to argue that all of the gains and profits belong to the band is pretty crazy. People didn't buy the toys because of the music. It may have helped draw attention to the toys, but it was the toys themselves that people were buying (and let's leave out the separate debate over whether or not Goldieblox's toys are actually any good -- that's an irrelevant tangent here).

In the end, it can reasonably be argued that Goldieblox poked the Beastie Boys with a legal stick as part of a publicity campaign, which is increasingly looking like a major strategic miscalculation (perhaps both on the PR side, since there's been so much backlash, and now on the legal side). The Beastie Boys have now hit back hard. This isn't surprising.

Still, even if you think that Goldieblox's actions are reprehensible from the stunt side, if you believe in the importance of fair use, it's disappointing to see the Beastie Boys make this move. As we've noted, the band itself relied on fair use for quite a bit of their own work, and a ruling in this case in their favor would tragically reduce fair use and limit the ability to parody, something that would truly be a loss for culture and society.


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    out_of_the_blue, Dec 11th, 2013 @ 7:49am

    BUT, you're still going with the wrong side:

    "I agree that it's crass and quite lame to use the legal system as a PR tool, and it certainly doesn't reflect positively on Goldieblox as a company." -- If was in any degree for PR, then the court should punish Goldieblox, perhaps for contempt separately.

    It's pretty easy when such comes up that the original artist intrinsically has the greater part of the argument: "fair use" is a DEFENSE, not an entitlement to do anything desired with the works of others.

    So what is Mike's position on copyright? ... Try to guess from this!
    http://www.techdirt.com/articles/20130121/14473121743/global-hackathons-prepared-to-carry-forwa rd-work-aaron-swartz.shtml#c377

    03:49:20[d-402-2]

     

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      jackn, Dec 11th, 2013 @ 8:00am

      Re: BUT, you're still going with the wrong side:

      sentence structure, you're loosing it blue...

       

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        out_of_the_blue, Dec 11th, 2013 @ 8:05am

        Re: Re: BUT, you're still going with the wrong side:

        Tripoli Yolo
        03:49:20[d-402-2]

         

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        Anonymous, Dec 12th, 2013 @ 2:52pm

        Re: Re: BUT, you're still going with the wrong side:

        Yain't so good yourself.

         

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      out_of_the_blue, Dec 11th, 2013 @ 8:01am

      Re: BUT, you're still going with the wrong side:

      Trollololololol yolololololo
      03:49:20[d-402-2]

       

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      cpt kangarooski, Dec 11th, 2013 @ 8:10am

      Re: BUT, you're still going with the wrong side:

      It's pretty easy when such comes up that the original artist intrinsically has the greater part of the argument: "fair use" is a DEFENSE, not an entitlement to do anything desired with the works of others.

      Wrong.

      Everyone always is entitled to do anything they desire with the works of others. Copyright interferes with this, but is subject to limits as to when, and to what extent, it can interfere. Fair use is one of these limits. When a use is fair, copyright no longer applies to the underlying work being used, and the natural entitlement provided to all humanity as our God-given right and ability of free speech is unencumbered.

       

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        LAB (profile), Dec 11th, 2013 @ 9:23am

        Re: Re: BUT, you're still going with the wrong side:

        .....God given right to make commercials from my art? .....Interesting

         

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          Baron von Robber, Dec 11th, 2013 @ 9:31am

          Re: Re: Re: BUT, you're still going with the wrong side:

          If it's modified enough that it changes it's intent or message to a different intent or message, then yes, duh.

           

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            LAB (profile), Dec 11th, 2013 @ 9:42am

            Re: Re: Re: Re: BUT, you're still going with the wrong side:

            So changing the chorus from "girls" to "girls" is enough modification? and you are going to use the name of my group in the title? Nice try .....God given right...please

             

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              JMT (profile), Dec 11th, 2013 @ 12:14pm

              Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

              "So changing the chorus from "girls" to "girls" is enough modification?"

              Are you purposefully trying to sound dumb? "Girls" was the only lyric not changed. Every other word was different. Are you seriously claiming that's not enough modification?

               

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          cpt kangarooski, Dec 11th, 2013 @ 10:06am

          Re: Re: Re: BUT, you're still going with the wrong side:

          .....God given right to make commercials from my art? .....Interesting

          Yep.

          Like I said, there's a free speech right that is more fundamental than copyright, and which copyright infringes upon. (This infringement may be acceptable, but it is an infringement)

          If I want to use the Mona Lisa to advertise toothpaste, I don't have to get permission from the estate of Leonardo DaVinci or anyone else. Copyright law does not place works into the public domain, and does not grant to the public a right to use such works; it only temporarily restricts the use of copyrighted works while the copyright is in effect, to the extent that the law defines the scope of copyright.

          Thus, in the absence of copyright, it must be free speech. If you prefer to see free speech as simply being a natural aspect of the universe and of humans, rather than requiring the existence of God, that's fine, but it basically amounts to the same thing.

          The only thing that prevents people from using your art in a commercial is the willingness of those same people to give you a veto power over them. But you don't have any innate right to stop them. (Other than to make the issue moot by not creating art, or keeping your art so secret that no one even tries to use it)

           

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          Greevar (profile), Dec 11th, 2013 @ 10:47am

          Re: Re: Re: BUT, you're still going with the wrong side:

          "Your" art? Prove to me that you didn't use any prior art in the creation of "your" art and I will concede that it is wholly yours.

          That's mostly a rhetorical statement because it's impossible to create art without using prior art. Everything comes from what came before. You create based on what you've learned and what you've experienced, so everything you use to create art is based on prior art. To claim it as yours is to say that by planting a few seeds in the ground, you own the Earth. You made a small incremental change in the scope of all of art history and expect everything it came from to be your property.

           

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            LAB (profile), Dec 11th, 2013 @ 10:59am

            Re: Re: Re: Re: BUT, you're still going with the wrong side:

            Nice, however fair use is a defense.... no need to prove my work is wholly original...you must prove your infringement is fair use. To state that no one really creates anything new and thus has no right to be paid for it would doom every artist and places the creative with no value in society

             

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              Greevar (profile), Dec 11th, 2013 @ 11:34am

              Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

              That is complete and utter fallacy. The fact that the song was constructed from other songs hits the moral outrage pretty hard because it's hypocritical. However, proving that a work being defended from alleged infringement is actually infringing itself can render a copyright null, thus rendering a copyright suit null.

              Also, I never said nobody has the right to be paid, that is a fabrication. I said nobody has the right to bitch about people using your works when you do the exact same thing to create yours! It's a double standard to use the works of others for profit and then go after those that do the same to your works. You don't need copyright to make money, it was set up as an incentive to get people to make more art, not a welfare system for artists nor a cudgel to beat people over the head because you don't like what they're doing.

              Drop the moral indignation, you're not on high ground here.

               

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                LAB (profile), Dec 11th, 2013 @ 12:14pm

                Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                Moral indignation..hardly..they PAID licenses to sample the works used to make their music. It doesn't make it any less THEIRS and the double standard is they paid to make the music but you say the have no title to it and others can use it with impunity...please don't tell me artist make no money from copyright because publishing, licensing and royalties are based on it.....copyright= welfare system for artists? I find that statement utterly ridiculous.

                 

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                  jupiterkansas (profile), Dec 11th, 2013 @ 12:22pm

                  Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                  Perhaps you should look into the Beastie Boys and the history of sampling.

                   

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                  LAB (profile), Dec 11th, 2013 @ 12:28pm

                  Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                  just found out they might not have paid licenses to create the music! Well that definitely changes how I feel about it.....but copyright= welfare for artists, I still disagree.

                   

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                    jupiterkansas (profile), Dec 11th, 2013 @ 12:49pm

                    Re: Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                    Granted, at the time there was no such thing as licenses for samples. That's something the RIAA came up with later to demand payment from artists.

                     

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                  Anonymous Coward, Dec 11th, 2013 @ 5:00pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "Life + 70 years". Yeah, that totally doesn't sound like welfare at all.

                   

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      S. T. Stone, Dec 11th, 2013 @ 8:16am

      Re: BUT, you're still going with the wrong side:

      the original artist intrinsically has the greater part of the argument: "fair use" is a DEFENSE, not an entitlement to do anything desired with the works of others

      Yes, Fair Use is a defense.

      It allows pop culture critics of all kinds to use an existing work as part of a commentary on culture, or a treatise on politics, or even a critcism of the existing work itself (e.g. CinemaSins, Red Letter Media's Mr. Plinkett reviews).

      It allows people to cover news broken by other organizations without the expressed/written consent of the original "newsbreaker" and add original commentary to the news (e.g. The Daily Show, which makes use of clips from Fox News and MSNBC all the time).

      Fair Use allows for the most important thing about culture to exist: the ability to use existing culture to create new culture.

      That Fair Use exists only as a legal defense (and one based solely on vague legal definitions) instead of as a legal right extended to all peoples should make anyone who dares call themselves a ‘creator’ ashamed of themselves for attacking anyone who relies on Fair Use to create.

      After all, originality died from the moment man told his first campfire story.

       

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        LAB (profile), Dec 11th, 2013 @ 9:28am

        Re: Re: BUT, you're still going with the wrong side:

        I create music....So I have no say when my music being made into commercials to sell products? Without them paying me for it? So they can take it for free? That is fair use? I think not. Fair use is a definitely parody by an artist...Weird Al not a company taking my song to make a commercial. I find it interesting to act as if goldiblox makes parody records or something.....

         

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          Gwiz (profile), Dec 11th, 2013 @ 9:48am

          Re: Re: Re: BUT, you're still going with the wrong side:

          So I have no say when my music being made into commercials to sell products?

          Not if the use is considered Fair Use.


          Fair use is a definitely parody by an artist...Weird Al not a company taking my song to make a commercial.

          Weird Al is most definitely selling his parodies and he is most definitely using those songs to promote his live appearances. How is that different from promoting a toy line with a parody?

           

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            LAB (profile), Dec 11th, 2013 @ 10:22am

            Re: Re: Re: Re: BUT, you're still going with the wrong side:

            For Goldiblox
            case: Acuff fair use
            nature of use....reproductive vs trans formative = iffy Goldie win!
            nature of work used... non profit/news v commercial= Goldie lose!
            amount of work used ...most of song?= Goldie lose?
            likely hood to stifle future commercial profitability/use of copyrighted work= Goldie win!
            of course this is not at trail....fair use always a crapshoot but do you want to spend 100k+ to see if it is fair use? Prob not

             

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              Gwiz (profile), Dec 11th, 2013 @ 10:58am

              Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

              Kudos for actually looking into how a Fair Use case is judged.

              But this IP lawyer at EFF doesn't necessarily agree with your assessment of this case:

              https://www.eff.org/deeplinks/2013/11/beastie-boys-goldieblox-fair-use-lawsuit

               

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                LAB (profile), Dec 11th, 2013 @ 11:20am

                Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                Thanks for this!
                I disagree with her analysis with the second and third factors.
                The second factor: A work's copyright does not diminish over time, it is either enforceable or not. Either the copyright is in effect or the time has run and it is in public domain. A light is on or off so to speak. The court gives no deference how long a copyright has been used.

                The third factor: If enough of the song has been used that it can be recognized (thus the legal action)and runs almost the same length then "enough" of the song has been used.

                It's just law analysis so reasonable minds will differ.

                If a guy puts in his will don't use our music for adverts then they should fight for it. I can't find them as bad guys here.

                 

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                  Gwiz (profile), Dec 11th, 2013 @ 11:44am

                  Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                  The second factor: A work's copyright does not diminish over time, it is either enforceable or not. Either the copyright is in effect or the time has run and it is in public domain. A light is on or off so to speak. The court gives no deference how long a copyright has been used.

                  This prong isn't about the length of the copyright per se (which is going to end up at "forever" if I know Disney), but more along the lines of whether the work is fiction or non-fiction (not applicable here) and whether the work is published or unpublished and if it's still being produced or being monetized. Although, I'm not very sure about McSherry's assessment of this one myself.


                  The third factor: If enough of the song has been used that it can be recognized (thus the legal action)and runs almost the same length then "enough" of the song has been used.

                  I'm not so sure that the length of the song is all that important. As McSherry points out - the song went as long as needed to complete the Rube Goldberg machine. Also, there was case fairly recently where a news article was copied in toto and was still considered Fair Use by the court:

                  http://www.techdirt.com/articles/20110318/23595613558/big-big-loss-righthaven-reposting-full-a rticle-found-to-be-fair-use.shtml

                   

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              JMT (profile), Dec 11th, 2013 @ 12:50pm

              Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

              "amount of work used ...most of song?= Goldie lose?"

              I keep banging on about this, and have yet to hear a good argument from a Goldieblox detractor. How do you claim "most of the song" has been used when nearly every single lyric has been changed, and the song's message has been completely flipped around?

               

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                Rapnel (profile), Dec 11th, 2013 @ 1:12pm

                Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                The "elements" of the two compositions are quite similar if not meticulously patterned to be "identical".

                Oddly enough everything but the "sound" is the same which, naturally, makes it all but completely different.

                It's definitely parody, IMO and clearly not the Beastie Boys, who would be better served by moving on I think.

                 

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                LAB (profile), Dec 11th, 2013 @ 1:18pm

                Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                The argument is if the chorus and the melody are used, is that not "most" of the song? What does anyone remember about a song? The chorus words and melody

                 

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                  Baron von Robber, Dec 11th, 2013 @ 1:48pm

                  Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                  It doesn't matter if they covered intro/verse/chorus/bridge/ending note by note. If they changed one word and it meant changing meaning of the whole song, that could be parody and fair use. In this case, you have a sexist view of girls being subservient to boys from the BBoys song.

                   

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                  JMT (profile), Dec 11th, 2013 @ 2:28pm

                  Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                  "The argument is if the chorus and the melody are used, is that not "most" of the song?"

                  As I've said before, the utter disdain for lyricists by people like you is amazing. If the chorus and the melody are considered "most" of the song, the lyrics must be pretty much worthless right?

                  "What does anyone remember about a song? The chorus words and melody"

                  The whole point of this song was its lyrical message. It's by far the most memorable aspect of it. The musical side of it is about the least interesting part.

                   

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                    nasch (profile), Dec 11th, 2013 @ 9:32pm

                    Re: Re: Re: Re: Re: Re: Re: Re: BUT, you're still going with the wrong side:

                    The whole point of this song was its lyrical message. It's by far the most memorable aspect of it. The musical side of it is about the least interesting part.

                    I can barely remember how the song goes, but I remember the message (if not the exact words).

                     

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          MomOf5 (profile), Dec 12th, 2013 @ 10:40am

          Re: Re: Re: BUT, you're still going with the wrong side:

          I think what people are missing is the actual intent of the use of the song. I am a 34 year old mother of a daughter who already wanted to be an engineer. When I saw this ad, I was amazed...and so was my 8 yr old! It was not--I repeat WAS NOT--the song that made me purchase the product. I do not know the song. I have not even googled the song since the last of the 7 bizillion times she made me play the video. When I did hear some of the words to the original song, I was offended as a "girl!" I can and cannot see why the company chose to use that song in particular. I was tripping out by the fact that I felt they were going to have people searching and giving new life to a song with sexist and chavaunnistic lyrics. Then, I thought, "What better song to 'fix?'" If the lyrics are actually what the members of the Beastie Boys felt--and obviosuly still must feel--about the roles, places, and purposes of "girls," then I can see why they're crying in the corner like a bunch of b*#@*es! (You thought I was going to say, "Girls," huh?)

           

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            Anonymous Coward, Dec 12th, 2013 @ 4:39pm

            Re: Re: Re: Re: BUT, you're still going with the wrong side:

            Why do you think it is "obvious" that the Beastie Boys still feel the same way as a song they wrote 25 years ago?

            Because they don't want people using it without permission? That hardly makes your assumption "obvious."

            Anyway, they have publicly stated numerous times that they do not support misogynistic messages in the years since they originally released that song.

             

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    jackn, Dec 11th, 2013 @ 7:58am

    advertising and fair use? Do, go on...

     

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    Anonymous Coward, Dec 11th, 2013 @ 8:10am

    This seems fairly extreme again. Even if we accept that this was a giant publicity stunt, and even if it drove a bunch of sales, to argue that all of the gains and profits belong to the band is pretty crazy. People didn't buy the toys because of the music. It may have helped draw attention to the toys, but it was the toys themselves that people were buying (and let's leave out the separate debate over whether or not Goldieblox's toys are actually any good -- that's an irrelevant tangent here).

    I know you're just up on your soapbox, but they aren't asking for ALL of the profits. They're asking for all of the profits that can be attributed to the infringement, which will be some fraction of the total profits yet to be determined. This is SOP. But the fact remains that they used the song to sell more toys. Yes, people bought the toys themselves, but a fraction of those sales can be attributed to the song. That's why advertisers usually pay fees to license such songs, since they drive sales. I'm surprised you don't grasp such simple concepts. (Although, I suspect you do grasp it, and are just being dishonest.)

    Still, even if you think that Goldieblox's actions are reprehensible from the stunt side, if you believe in the importance of fair use, it's disappointing to see the Beastie Boys make this move. As we've noted, the band itself relied on fair use for quite a bit of their own work, and a ruling in this case in their favor would tragically reduce fair use and limit the ability to parody, something that would truly be a loss for culture and society.

    Back on your silly soapbox. Culture will get along fine with people paying licensing fees to use other people's songs in their commercials. Give me a break. You really lose credibility in saying things like this.

     

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      S. T. Stone, Dec 11th, 2013 @ 8:20am

      Re:

      Culture will get along fine with people paying licensing fees to use other people's songs in their commercials.

      Except, if you’ll recall, GoldieBlox didn’t use the actual song itself. The company made a parody of the Beastie Boys song and used said parody in its ad.

      Parody has First Amendment protections and, last I checked, remains one of the few types of works which benefits from a strong Fair Use defense.

      Culture might get along with people paying licensing fees for the commercial usage of songs, but will culture get along with people paying licensing fees just to create parodies of songs?

       

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        jackn, Dec 11th, 2013 @ 8:37am

        Re: Re:

        advertising is not parody or social commentary. case closed.

         

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          Baron von Robber, Dec 11th, 2013 @ 8:44am

          Re: Re: Re:

          Your brain is closed.

          Around election time, there are TONS of adverts that are parodies or social commentaries.

           

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          Gwiz (profile), Dec 11th, 2013 @ 8:45am

          Re: Re: Re:

          advertising is not parody or social commentary. case closed.

          Wrong. Those are not mutually exclusive things. It CAN be both. Case not closed.

           

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            jackn, Dec 11th, 2013 @ 9:34am

            Re: Re: Re: Re:

            No, case closed. Glodiebox will be paying up soon...

             

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              Gwiz (profile), Dec 11th, 2013 @ 9:54am

              Re: Re: Re: Re: Re:

              No, case closed. Glodiebox will be paying up soon...


              I agree that this will probably end up with a settlement, but that doesn't mean that advertising and Fair Use are mutually exclusive in any way, shape or form.

              The only way you can conclude such a thing is if this actually went to court and even then it's not absolute, Fair Use cases are determined on a case by case basis. The next court could rule the opposite way.

               

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                jackn, Dec 11th, 2013 @ 10:07am

                Re: Re: Re: Re: Re: Re:

                Ok, ok

                99.9999999% of the time, advertising could not be fair use if the ad used another's work (such as music, words, images, videos, etc...)

                 

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                jackn, Dec 12th, 2013 @ 10:50am

                Re: Re: Re: Re: Re: Re:

                A little info for you

                Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in section 107 of the Copyright Act. Those factors are:

                1.The purpose and character of the use of copyrighted work
                •Transformative quality - Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?
                Commercial or noncommercial - Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.
                2.The nature of the copyrighted work
                A particular use is more likely to be considered fair when the copied work is factual rather than creative.
                3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
                How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its "heart," may weigh against fair use. But "how much is too much" depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.2
                4.The effect of the use upon the potential market for or value of the copyrighted work
                This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.


                See http://www.teachingcopyright.org/handout/fair-use-faq

                emphasis is mine

                 

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                  Karl (profile), Dec 12th, 2013 @ 12:23pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Right back atcha:
                  The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term "including" to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into "purpose and character." As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." [...]

                  Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a "sensitive balancing of interests," noted that Congress had "eschewed a rigid, bright line approach to fair use," and stated that the commercial or nonprofit educational character of a work is "not conclusive," but rather a fact to be "weighed along with other[s] in fair use decisions."
                  - Campbell v. Acuff-Rose

                  Unfortunately, the finding that the Nielsen ad parodies the Moore photograph does not, standing alone, mean that the first factor of the fair use analysis weighs in favor of defendant. The first factor requires me to look at two issues, the character and purpose of the otherwise infringing use. In the present case, these two "ingredients" of the first element militate in favor of opposing conclusions. The Nielsen ad is, like all legitimate parodies, "transformative" in character. It is also, however, undoubtedly commercial in purpose: it was intended to pique public interest in Naked Gun 33 1/3 . In the wake of Campbell, this factor is not dispositive but it remains relevant and weighs against a finding of fair use. [...]

                  I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one. [...] Under the particular circumstances of this case, I find that the purposes of copyright are best served by a finding that the highly transformative character of the Nielsen ad trumps its admittedly commercial purpose and that the first fair use factor therefore weighs in favor of the defendant, albeit perhaps by only a slight margin.
                  - Leibovitz v. Paramount Pictures Corp.

                   

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            LAB (profile), Dec 11th, 2013 @ 9:36am

            Re: Re: Re: Re:

            Generally not. Contrast Weird Al record to this situation. One has some degree of artistic merit that is sold generating income the other is a commercial to encourage buying and itself is not sold ( a commercial)

             

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              jupiterkansas (profile), Dec 11th, 2013 @ 9:44am

              Re: Re: Re: Re: Re:

              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.

               

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        Just Sayin', Dec 13th, 2013 @ 1:43am

        Re: Re:

        The argument is a failure, because while parody as an art form is protected, parody and mimicry are not protected in terms of commercial speech.

        Simply put, there would be no issue if the parody was out there without the commercial aspects of promoting goldieblox. Parody is only one part of the fair use argument, and when stacked up with other issues, it's pretty clear that this isn't fair use - it is commercial use.

        Moreover, because they specifically used the band name, which certainly left the impression of endorsement or support by the band goes only further to show their intent.

        Parody as parody isn't the issue here, it's a red herring used by anti-copyright apologists who can find an excuse for any and all bad behavior.

         

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          Greevar (profile), Dec 13th, 2013 @ 8:29pm

          Re: Re: Re:

          I will say this one last time COMMERCIAL USE DOES NOT NEGATE A FINDING OF FAIR USE. Thank you very much.

           

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            jackn, Dec 16th, 2013 @ 9:03am

            Re: Re: Re: Re:

            And I will say one last time,

            Commercial use is a major factor in the determination of fair use.

            Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.

            read it and weep.

             

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              Greevar (profile), Dec 16th, 2013 @ 9:55am

              Re: Re: Re: Re: Re:

              It is most definitely a factor, but so is the impact on the market for the original work. Will this parody usurp the market for the original? It's very unlikely since the song's long tail market value has tapered off a long time ago. So you have the transformative factor (new lyrics and recording), the parody factor (contradicting the original lyrics), negligible market impact (this song is not competing against the original), and it's reasonable to see this as fair use.

              A determination of fair use is meant to slant towards the benefit of the public good rather than the benefit of the rights holder. This parody was created to promote a product that is intended to fulfill an educational gap in society, which is introducing science and engineering to girls, a lofty goal. Are they trying to make money on this? Of course they are, it's hard to make products for free and our economy is profit driven.

              You are delusional to think it's a slam-dunk decision that this is not fair use just because it's commercial in nature. You make the massive presumption that commercial use is a major determining factor in fair use, but it isn't. It is one of many factors that all must be investigated.

              You weigh commercial factors higher than all the others because of some misguided sense of moral property rights. But it isn't property. It's a grant from the government, a compromise between the public and the artist so that both can get something out of it. It isn't self-evident and it isn't inalienable. It's a granted right that can just as easily be taken as it was given. The goal, which is to provide an opportunity to make a profit, is not to give the power to prevent people from benefiting from it.

              This is an example of such beneficial use. The more content we have access to, the more resources we have to create new works, regardless of the motivations for leveraging it. More access to more content to be used in the creation of more content is a good thing. More accessible content benefits us all so that we can expand our culture, our self-expression, and our knowledge, even if that content is used for commercial gains.

              Your attitude is poor and it's very arrogant that you are so sure of your position that you can be condescending to anyone that argues against your presumedly superior opinion.

              Your use of the phrase "read it and weep" is insulting because you have not sufficiently argued that your opinion has the most merit. Even if you had, it's still a dick move to be so immodest.

               

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    Violynne (profile), Dec 11th, 2013 @ 8:15am

    We can tell the Beastie Boys don't read Techdirt.

    If they had, they'd realize content is advertising, advertising is content.

    >:]

     

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    Anonymous Coward, Dec 11th, 2013 @ 8:18am

    Add yet another band to the list that I will never give another cent to.

     

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    Anonymous Coward, Dec 11th, 2013 @ 8:19am

    Hahahaha this is going to be great!

    Looks like you're a little tired of using that same shovel, as there are more caveats and back-tracking "easy out" phrasings in here to make it seem like your hard-line stance might not be so viable. This is great news, as I think the Beastie Boys are doing a service to musicians the world over by standing up for themselves in the face of disgusting abuse of the system - and even trying to co-opt a place like TechDirt...Remember in the lawsuit how they mentioned sites are supporting the fair use argument without actually citing any sources - that's a direct ploy and interesting you don't mention it, especially because they conned you into taking their side before all the facts came out.

    So, when does turning a video's setting to "Private" equate to taking it down? My hunch is they still want to show that video and the blatantly infringing "We Are the Champions" (apparently unlicensed as well) to potential investors. They didn't take the infringing items down, they just threw a blanket over and told the Beastie Boys to keep walking. Oh well, thankfully GoldiBlox is so egotistically irrational that they basically have handed the case over through showing a disregard for recognized artistic, commercial, and licensing ventures.

    Mmmm, tasty.

     

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      S. T. Stone, Dec 11th, 2013 @ 8:22am

      Re: Hahahaha this is going to be great!

      The parody of ‘Girls’ and the blatantly infringing use of ‘We Are the Champions’ are two different subjects.

      The parody has the potential to fall under Fair Use.

      The infringing use of Queen, however, does not.

      When Queen decides to step up to sue, I’ll likely side with them over a clear-cut case of copyright infringement. Until then, I side with GoldieBlox in the Fair Use/parody fight against The Beastie Boys.

       

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    B's Opinion Only (profile), Dec 11th, 2013 @ 8:21am

    Obvious

    The moment the video became about selling a product and not about making social commentary, fair use went out the window.

    This is very simple. Using someone else's copyrighted work in a commercial is not fair use.

    Also, knowing the Beastie Boys, any money they make from this will go to a worthy charity, probably something MCA was passionate about such as Tibetan freedom or childhood cancer.

     

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      S. T. Stone, Dec 11th, 2013 @ 8:23am

      Re: Obvious

      The moment the video became about selling a product and not about making social commentary, fair use went out the window.

      Pray tell, how does the commercial use of a parody exempt said parody (or its creators/distributors) from the Fair Use defense?

       

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        Oblate (profile), Dec 11th, 2013 @ 10:28am

        Re: Re: Obvious

        Except Weird Al always asks permission, even though he doesn't have to. From Wikipedia:
        -
        Under the "fair use" provision of U.S. copyright law, affirmed by the United States Supreme Court, artists such as Yankovic do not need permission to record a parody.[55] However, as a personal rule and as a means of maintaining good relationships, Yankovic has always sought permission from the original artist before commercially releasing a parody.[7] He claims that only about two to three percent of the artists he approaches for permission deny his requests,[56] while many of the rest who approve consider Yankovic's parodies to be a badge of honor and rite of passage in the music industry.
        -
        Hope this clears this up.

         

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      Jeff (profile), Dec 11th, 2013 @ 8:26am

      Re: Obvious

      So according to your line of thought Weird Al should be living in the poor-house then?

       

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        Anonymous Coward, Dec 11th, 2013 @ 8:44am

        Re: Re: Obvious

        Yeah no shit. Every parody that Weird Al has ever produced is an advertisement to sell his parodies via CDs and other products. He sells the parodies themselves outright. If Goldieblox has no case, then surely Weird Al has no case.

         

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        dan, Dec 11th, 2013 @ 9:17am

        Re: Re: Obvious

        Hey Jeff for the record weird Al always asks for permission *first* if he's not granted permission (for whatever reasons that are none of our business) he moves on.
        Really really really bad example Jeff; do your homework before commenting.

         

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          jupiterkansas (profile), Dec 11th, 2013 @ 9:23am

          Re: Re: Re: Obvious

          Except that's not how things are legally required to be done. He doesn't have to ask permission, and he can still do the parodies even if denied.

           

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          Jeff (profile), Dec 11th, 2013 @ 10:37am

          Re: Re: Re: Obvious

          I've done my homework - perhaps you ought remove your foot from your mouth before commenting. As many others have said on this post - Weird Al doesn't *have* to ask permission to parody a song. He does so out of professional respect. Asking permission for a parody has nothing to do with Fair Use https://en.wikipedia.org/wiki/Fair_use#Fair_use_and_parody

           

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          Anonymous Coward, Dec 11th, 2013 @ 5:36pm

          Re: Re: Re: Obvious

          Uh no, you're wrong. He released "I Perform This Way" without Lady Gaga's consent. Read his wordpress blog.

           

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            Anonymous Coward, Dec 11th, 2013 @ 5:55pm

            Re: Re: Re: Re: Obvious

            No, do some searching yourself. Lady Gaga hadn't heard that "Perform This Way" even existed; her label was the one that said no. Then she heard of it, asked to listen to it, and loved it to bits such that she made it clear she approved it. It's on his CD "Alpocalypse". If it was something like "You're Pitiful" where the artist's label refused to permit it then yes, it would have been left off the album.

             

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              nasch (profile), Dec 11th, 2013 @ 9:35pm

              Re: Re: Re: Re: Re: Obvious

              Lady Gaga hadn't heard that "Perform This Way" even existed; her label was the one that said no.

              If they said no, then I assume that means they hold the copyright. If so, then Gaga's wishes are irrelevant, legally speaking.

               

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      cpt kangarooski, Dec 11th, 2013 @ 8:30am

      Re: Obvious

      This is very simple. Using someone else's copyrighted work in a commercial is not fair use.

      Wrong. There has been litigation on that subject, and the courts said that it was possible. It may be unlikely, and as with all fair use, it depends on the particular circumstances at issue, but your absolute statement is simply untrue.

      In fact, any absolute statements of that sort always fail when it comes to fair use. Any use can be a fair use, given the right circumstances, though not every use will be fair. It's tremendously open-ended.

      Here's the Wikipedia page for the case in which an advertisement that re-used someone else's work without permission, in the form of a parody, was found to be a fair use and thus not an infringement: http://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Pictures_Corp.

       

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        Anonymous Coward, Dec 11th, 2013 @ 8:39am

        Re: Re: Obvious

        I would argue that the Beastie Boys have a decent case here, though that is down to the fact that the US is horrible in this particular area of the law.

         

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      Mike Masnick (profile), Dec 11th, 2013 @ 8:39am

      Re: Obvious

      The moment the video became about selling a product and not about making social commentary, fair use went out the window.

      This is very simple. Using someone else's copyrighted work in a commercial is not fair use.


      Wrong wrong wrong wrong wrong.

      http://www.techdirt.com/articles/20131126/10224325381/myth-busting-yes-advertisement-can-be-fa ir-use-parody.shtml
      http://www.techdirt.com/articles/20131125/10182325360/beastie-boys-say-they-dont- want-music-ads-fair-use-doesnt-care.shtml

      http://supreme.justia.com/cases/federal/us/510/569/case.htm l
      http://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Pictures_Corp.

       

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        jackn, Dec 11th, 2013 @ 10:04am

        Re: Re: Obvious

        The moment the video became about selling a product and not about making social commentary, fair use went out the window.

        Right, right, right....or correct!

         

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          Greevar (profile), Dec 11th, 2013 @ 11:06am

          Re: Re: Re: Obvious

          That's completely false. You have no idea what you're talking about. Commercial use of copyrighted material does not negate fair use. Just because you think it should, doesn't make it so.

           

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          Anonymous Coward, Dec 11th, 2013 @ 11:15am

          Re: Re: Re: Obvious

          Use in criticism, or social commentary are often also commercial enterprises, so whether or not making money is involved has nothing to do with fair use.

           

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      JMT (profile), Dec 11th, 2013 @ 1:02pm

      Re: Obvious

      "The moment the video became about selling a product and not about making social commentary, fair use went out the window."

      When exactly did this stop being a social commentary? The song's message is just as strong and important as it ever was. You have a very blinkered view if you think advertising can't also make social commentary.

       

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      Anonymous Coward, Dec 11th, 2013 @ 1:52pm

      Re: Obvious

      Why do you think it's one or the other? It seems pretty clear to me it is about selling a product, social commentary, and commentary on the themes in the original "Girls" work.

       

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    Anonymous Coward, Dec 11th, 2013 @ 8:38am

    Except, if you’ll recall, GoldieBlox didn’t use the actual song itself. The company made a parody of the Beastie Boys song and used said parody in its ad.

    Yes, they used the copyrighted work in a way that implicates the exclusive rights. That's what this is all about.

    Parody has First Amendment protections and, last I checked, remains one of the few types of works which benefits from a strong Fair Use defense.

    Parodies can have First Amendment protection. The commerciality is important in that determination, and when the use is as an advertisement, that puts the thumb on commercial side of the scale more so than any other type of commercial use. To counteract this, the work has to be even more transformative. I don't think this parody is especially transformative. It's nothing like 2 Live Crew's parody.

    Culture might get along with people paying licensing fees for the commercial usage of songs, but will culture get along with people paying licensing fees just to create parodies of songs?

    And that's the false implication that Mike made. This is about using someone's songs in a commercial to sell an unrelated product. It's not about parodies such as 2 Live Crew's parody of Pretty Woman. The context is different because it's an advertisement. Not all parodies are fair use. This case is about that: Which side of the line does it fall on? You can have some parodies, such as this one, not be fair use and yet culture will thrive and blossom. It's that doomsday argument that's so silly. Mike jumps on the "OMG WHAT ABOUT CULTURE BLARGH BLARGH" whenever anyone attempts to enforce their copyright rights. It's stupid.

     

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      Gwiz (profile), Dec 11th, 2013 @ 8:54am

      Re:

      ... the work has to be even more transformative. I don't think this parody is especially transformative.


      Huh? Completely new lyrics that completely the REVERSE the entire meaning of the song and that isn't "especially transformative"? On what planet?


      The context is different because it's an advertisement. Not all parodies are fair use.

      It's true that not all parodies are Fair Use. Just like being an advertisement doesn't negate the Fair Use defense either.

       

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      Anonymous Coward, Dec 11th, 2013 @ 1:54pm

      Re:

      "I don't think this parody is especially transformative. It's nothing like 2 Live Crew's parody."

      Could you elaborate on this? The song is directly critical of themes put forth in the original "Girls" version. If anything, I think this is a stronger parody case than the 2 Live Crew case.

       

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    Anonymous Coward, Dec 11th, 2013 @ 8:45am

    Wrong wrong wrong wrong wrong.

    You're of course correct that Liebovitz was fair use despite being an advertisement. But you haven't told us anything in pointing this out. There are some ways this is like that case, and there are some ways that it's not. You've "busted" the myth that it's absolutely not fair use simply because it's an advertisement, but you haven't actually given us any interesting legal analysis of this particular situation.

     

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      Anonymous Coward, Dec 11th, 2013 @ 8:56am

      Re:

      Yes he did. He clearly explained several times that the song is parody and thus fair use. That's all it needs to be safe. I don't understand what else you want.

       

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      hobo, Dec 11th, 2013 @ 9:00am

      Re:

      Not to speak for Mike, but he quoted what he was responding to. B's Opinion Only specifically stated that parody as advertisement eliminates fair use. Mike rebutted that.

      That he didn't respond to everyone's opinions/thoughts/comments in that one comment is immaterial. He was responding to B's Opinion Only.

       

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      Gwiz (profile), Dec 11th, 2013 @ 9:01am

      Re:

      IANAL, but I will say that I believe that when a work is determined by the court to be a parody or negative review that the importance of the "market harm" prong is automatically diminished. Parodies and negative reviews are specifically designed to harm the market of the original and both of those are considered protected speech by the First Amendment.

       

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        Greevar (profile), Dec 11th, 2013 @ 11:09am

        Re: Re:

        They're not targeted to harm, they just do. However, nobody should be censored because someone doesn't like what they say about their art.

         

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    Anonymous Coward, Dec 11th, 2013 @ 9:02am

    Huh? Completely new lyrics that completely the REVERSE the entire meaning of the song and that isn't "especially transformative"? On what planet?

    There you go. Now you're thinking like a lawyer. I would start at looking at what transformativeness means in this jurisdiction. Find cases that discuss the standard and look at the fact patterns there. Do courts think that changing some lyrics is transformative? I think in that circuit you actually have the transformativeness inquiry show up under 3 of the 4 fair use factors, which obviously complicates things. But I think the key is not to just say that changing some lyrics is transformative since you think it's so. You'd have to point to precedent and say how it's like or unlike other cases that have come before. You have to figure out the standard and then apply it.

     

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    Mike R., Dec 11th, 2013 @ 9:06am

    Weird Al

    Weird Al Yankovic has one major difference from GoldieBlox: he gets permission from every artist he parodies, even though he doesn't have to. And if he doesn't get permission, he doesn't record the parody.

    Something GoldieBlox might have considered.

     

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      Mark, Dec 11th, 2013 @ 9:58am

      Re: Weird Al

      Weird Al asks for permission from the artists, out of professional respect, not legal requirement.

      He does not get permission/license from the copyright holders, which is what matters in this context. He can get permission from the artists all he wants, but it means nothing, if the copyright holders object.

       

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      cpt kangarooski, Dec 11th, 2013 @ 10:10am

      Re: Weird Al

      Weird Al Yankovic has one major difference from GoldieBlox: he gets permission from every artist he parodies, even though he doesn't have to. And if he doesn't get permission, he doesn't record the parody.

      Wrong. Al doesn't publish parodies for which he does not have permission by putting them on records. However, he is perfectly willing to perform such parodies in concert, and to publish the recordings on YouTube and perhaps by other means.

      In his own words:

      My parodies have always fallen under what the courts call “fair use,” and this one was no different, legally allowing me to record and release it without permission. But it has always been my personal policy to get the consent of the original artist before including my parodies on any album, so of course I will respect Gaga’s wishes. However, given the circumstances, I have no problem with allowing people to hear it online, because I also have a personal policy not to completely waste my stinking time.

      So I uploaded the song to YouTube, and will be making free mp3 downloads available on weirdal.com shortly. Hope you enjoy it.

       

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    Anonymous Coward, Dec 11th, 2013 @ 9:07am

    IANAL, but I will say that I believe that when a work is determined by the court to be a parody or negative review that the importance of the "market harm" prong is automatically diminished. Parodies and negative reviews are specifically designed to harm the market of the original and both of those are considered protected speech by the First Amendment.

    You're exactly right. Market harm because it brings disrepute to the original is irrelevant. The question is whether the derivative work USURPS the market for the original, not whether it harms it otherwise. I was just reading about this yesterday while looking at "The Cat Not in the Hat" case in the Second Circuit. I'd link to it but my VPN doesn't let me do links.

     

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    Anonymous Coward, Dec 11th, 2013 @ 9:08am

    Weird Al Yankovic has one major difference from GoldieBlox: he gets permission from every artist he parodies, even though he doesn't have to. And if he doesn't get permission, he doesn't record the parody.

    Something GoldieBlox might have considered.


    The conventional wisdom on TD is that he doesn't need permission, but I think that's far from clear. The fact that he obtains permission shows there's good reason to think that he does.

     

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      Gwiz (profile), Dec 11th, 2013 @ 9:38am

      Re:

      The fact that he obtains permission shows there's good reason to think that he does.


      Not really. It only shows that Weird Al prefers to get permission first as opposed to wasting time and money in court when some rights holder objects.

      By the way, the rights holders are supposed consider the possibility of the work being Fair Use prior to issuing a C&D or DMCA notice. (Well, at least up until this case, that is)

       

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      Anonymous Coward, Dec 11th, 2013 @ 5:32pm

      Response to: Anonymous Coward on Dec 11th, 2013 @ 9:08am

      Wrong! He released "I Perform This Way" on YouTube without Lady GaGa's consent and she explicitly said no, or at least her camp did. He didn't release it commercially but neither did Goldieblox.

       

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      Anonymous Coward, Dec 12th, 2013 @ 6:17am

      Re:

      No one's going to take you seriously.

      And here's a good reason why.

       

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      John Fenderson (profile), Dec 12th, 2013 @ 9:18am

      Re:

      The conventional wisdom on TD is that he doesn't need permission, but I think that's far from clear.


      Actually, that's one thing that is absolutely clear. There's plenty of legal precedent around this issue. You don't need permission to parody something.

       

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    weneedhelp (profile), Dec 11th, 2013 @ 9:10am

    B-Boys

    B Boys makin with the freak freak:
    http://www.beastieboys.com/
    Some-thing new 4 U.

    http://www.beastieboys.com/images/watch11.png

     

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  • This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Dec 11th, 2013 @ 9:14am

    Sorry, everyone, that my responses are not properly threaded. I'm using a VPN because Mike's actively blocking my IPs and such. The VPN messes things up as far as the replies threading properly.

    Why are you still blocking me, Mike? I'm happy to discuss this with you. Why won't you discuss it with me? I'm not going anywhere, and this just makes you look silly and desperate as you attempt to silence a critic.

    In other words, you're doing all the things to me you criticize other people for doing--and you know it.

     

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      Anonymous Coward, Dec 11th, 2013 @ 5:08pm

      Gee, should've thought about that before you spent months trying to turn Techdirt into a chicken farm with your incessant impressions.

      And you, using a VPN? Don't you know only filthy, immoral pirate douchebags use those? You freetard.

      average_joe just hates it when due process is enforced.

       

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      Anonymous Coward, Dec 17th, 2013 @ 10:36pm

      Re:

      If you are using a VPN to bypass an active blocking of your account, then you are in violation of the law. Turn yourself in like you want everyone else to do.

       

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    jupiterkansas (profile), Dec 11th, 2013 @ 9:21am

    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.

    And by the way, here's a list of other artists actual recordings that the Beastie Boys used in making that album, which should also be considered transformative and fair use.

     

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      Anonymous Coward, Dec 11th, 2013 @ 1:47pm

      Re:

      And if we're on this Merry-Go-Round again, let's go ahead and knock out your erroneous lines of thought!

      1. GoldieBlox is going to claim the purpose of their version of 'Girls' is parody and that should protect it for use in a for-profit enterprise - specifically a commercial. They might be ok on the existence of the parody on its own, but once they aligned it with a video they'd need a "sync" license, which the Beastie Boys would have surely declined. Remember that's how the Beastie Boys found out in the first place? A judge is going to view the existence of the parodic lyrics as secondary to the purpose of the existence of the song - to sell toys. It's a commercial venture that will not AND SHOULD NOT receive protections under the four factor test. You think the parody protection will usurp the commercial "reason to be" of the song itself, and I voraciously disagree.

      2. The GoldieBlox version is about the least transformative example that will ever be put to the test. 2LiveCrew used about 6 seconds total of Pretty Woman material. The fact that GoldieBlox made no effort beyond the lyric changes is going to further the Beastie Boys case that the intent was to capitalize on the primary song - and take market share away from it - rather than do an artistic re-interpretation that would provide reasonable safeguard. Basically, if they'd used a guitar instead of a little xylophone, it'd be a lot more transformative...also, if they hadn't used the thing almost throughout the commercial, that'd be different. As it stands, any musician who takes the stand is going to have a field day basically shredding the transformative nature of this work.

      3. Yeah, and as noted elsewhere by people who actually know things, GoldieBlox was going to need a sync license to be able to show the commercial during the SuperBowl, and that wasn't going to happen, so, basically in practice, the will is going to trump GoldieBlox's attempt to end-around the very artists they claim to "love" so much.

      Anything relating to the Beastie Boys prior use of music samples in music works or Weird Al being able to make a living off of music works that are parodies of other music works, those just don't fit into this discussion. You're smearing them with grease and they still won't fit. Cute attempt to pink-wash this scenario, but I've got the feeling I'm channeling the lawyers for the Beastie Boys and I think they're going to rip GoldieBlox to shreds, because they have it coming for being such aggressive hacks out to make a buck.

      Sorry to spoil your enjoyment of being wrong - buy stock in shovels because Mike will keep you busy.

       

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        Anonymous Coward, Dec 11th, 2013 @ 2:03pm

        Re: Re:

        " You think the parody protection will usurp the commercial "reason to be" of the song itself, and I voraciously disagree."

        Why? How is this different than 2 Live Crew? You really think their primary purpose wasn't to sell records or tickets to shows?

        "The GoldieBlox version is about the least transformative example that will ever be put to the test"

        Again, I think you are disregarding the guidance from the Supreme Court. Their analysis of transformative nature in a parody context is whether the song criticizes the original. The Goldieblox song is about as strong as can be in that regard, and is much stronger than the example in 2 Live Crew. Also, it's not clear that they actually used the BBoys sound recording or whether they re-recorded a soundalike.

         

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        JMT (profile), Dec 11th, 2013 @ 2:42pm

        Re: Re:

        "The fact that GoldieBlox made no effort beyond the lyric changes is going to further the Beastie Boys case that the intent was to capitalize on the primary song - and take market share away from it - rather than do an artistic re-interpretation that would provide reasonable safeguard."

        Can you explain how the GoldieBlox song could possibly take market share away from the Beastie Boys original? I genuinely want to hear you explain how this works, because I cannot imagine someone deciding to pay for one over the other. Also explain how BB have not befitted from a huge increase in interest in one of their early works.

        "Basically, if they'd used a guitar instead of a little xylophone, it'd be a lot more transformative...also, if they hadn't used the thing almost throughout the commercial, that'd be different."

        So playing the same tune on a different instrument is more transformative than writing an entirely new set of lyrics that purposefully flip the original song's message completely around. That's the most insane thing I've ever heard...

        "As it stands, any musician who takes the stand is going to have a field day basically shredding the transformative nature of this work."

        Any musician who writes lyrics is going to know that writing the lyrics required a lot more talent than simply playing a very simply tune on a different instrument.

         

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        jupiterkansas (profile), Dec 11th, 2013 @ 2:48pm

        Re: Re:

        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.

         

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          Anonymous Coward, Dec 11th, 2013 @ 2:55pm

          Re: Re: Re:

          A sync license covers putting the music into an audiovisual work (movie, tv, what-have-you). But, of course, if what you're doing is fair use, you don't need a license. That's the point.

           

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    anonymouse, Dec 11th, 2013 @ 9:33am

    Still

    In all of this i think the bottom line is that fair use should be allowed by individuals not businesses to generate income.

    If i use a music track to parody the performer i am not looking to make money from it, i am doing it for the fun of it.

    If a business does the same thing they are using art to create a performance that will generate them views and advertising.

    All in all i think that the problem here is that many believe a business is the same as a person and it is not...well only in the land of make believe where a business having the same rights as a person allows that business to use more money to buy politicians.

     

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      jupiterkansas (profile), Dec 11th, 2013 @ 9:37am

      Re: Still

      Except that's counter to everything the law says. Businesses can use fair use to generate income and they do it all the time. For some businesses it's the very core of what they do.

       

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      nasch (profile), Dec 11th, 2013 @ 10:27pm

      Re: Still

      In all of this i think the bottom line is that fair use should be allowed by individuals not businesses to generate income.

      So, for example, you think The Daily Show should not exist.

       

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    Rapnel (profile), Dec 11th, 2013 @ 9:57am

    A little conflicted

    I have not heard this parody version of Girls so I feel at a disadvantage but if I could listen to it and "heard" The Beastie Boys : Girls, riffs and all and the point of its existence is trying to sell some product then I can not see how that would be fair to use in advertizing, no matter how moshed it was.

    Admittedly I'm leaning more towards the "fuck no you can't use it to sell shit!" side if only for the fact that that was one of the attractions to this band's music "way back when".

    I understand that's pretty far from any sort of legal anything but... fuck Goldieblox - if they knew anything about the beasties they should've known that. So.. fuck all, I hope the beasties win even if fair use takes a hit (like it isn't already a walking corpse anyway).

     

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      jupiterkansas (profile), Dec 11th, 2013 @ 10:11am

      Re: A little conflicted

      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.

       

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        Rapnel (profile), Dec 11th, 2013 @ 11:00am

        Re: Re: A little conflicted

        Again, I haven't heard the song but wouldn't the music be more of a factor here than the words? You could change the words nine ways from Tuesday but if the riff is the same* then the hook for the advertising is "Beastie Boys music". Which, to me, would intuitively be "Advertising with the Beastie Boys".

        (I'll assume they didn't just lay new words over the entire original track as I'm suggesting here)

         

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          Greevar (profile), Dec 11th, 2013 @ 11:20am

          Re: Re: Re: A little conflicted

          Except the Beastie Boys didn't write wholly original songs either. They "store" riffs, melodies, and other pieces of prior art to build their album as jupiterkansas noted above. If you can come down on Goldieblox over their use of the Beastie Boys' song, then you should equally come down on the Beastie Boys for their use of other songs in that album. The bottom line is that the Beastie Boys are being immensely hypocritical.

           

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            Greevar (profile), Dec 11th, 2013 @ 11:35am

            Re: Re: Re: Re: A little conflicted

            stole*

             

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            LAB (profile), Dec 11th, 2013 @ 11:42am

            Re: Re: Re: Re: A little conflicted

            "Storing" a riff is sampling. Sampling requires a license. They paid to use those melodies and riffs to use them in their music. What they created was the melody and words that are so memorable over the top of the samples they paid to use. "Girls" is remembered for the words and the melody they created. Again, they are respecting the wishes of a deceased group member and I can't find it hypocritical.

             

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              jupiterkansas (profile), Dec 11th, 2013 @ 12:04pm

              Re: Re: Re: Re: Re: A little conflicted

              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.

               

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              Greevar (profile), Dec 11th, 2013 @ 12:11pm

              Re: Re: Re: Re: Re: A little conflicted

              You're trying to claim that what they did was "special" and, therefore, exempt from the same kind of scrutiny that is being applied to Goldieblox. It doesn't count for one iota that their actions are out of respect for the wishes of a dead friend, the law doesn't, and shouldn't, take that into consideration. It's not legally binding. So "Girls" is a famous song, so what? That doesn't make it anymore exempt from fair use than any other.

              Furthermore, Goldieblox didn't even sample the song. They recorded a new song with the same composition, but different lyrics. Nothing of the BB's recording exists in the song used in the ad.

              And they're not hypocrites? This article would put that to doubt.

              http://www.hollywoodreporter.com/thr-esq/beastie-boys-cant-escape-pauls-628260

               

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            Rapnel (profile), Dec 11th, 2013 @ 11:59am

            Re: Re: Re: Re: A little conflicted

            Your point brings transformation to mind. Is this Goldieblox song clearly transformative?

            Beastie Boys output is transformative, in both lyrics and music, and I make no bones about their use of sampling and influence from prior art but it is clear that their art stands on its own. Can this "version" of Girls do the same?

            I think I understand most arguments in this thread, for or against, so I'll be interested in the results.. Actually, I'd be much happier if they just all put their guns down and respect each others position and then let me download the song so I can hear what all the fuss is about.

             

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        jupiterkansas (profile), Dec 11th, 2013 @ 11:53am

        Re: Re: A little conflicted

        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.

         

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      Anonymous Coward, Dec 11th, 2013 @ 12:17pm

      Re: A little conflicted

      I have not heard this parody version of Girls…
      Enjoy.

       

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    kenichi tanaka (profile), Dec 11th, 2013 @ 12:15pm

    I don't agree with Mike Masnick's article. While the entertainment industry has always gone overboard on their copyright lawsuits against whoever, wherever ... in this case, I support the Beastie Boys.

    First, GoldieBlox used their music without permission and without licensing their music to be used in an advertisement that was designed to advertise for their company.

    Second, GoldieBlox filing for declaratory judgment and suing The Beastie Boys before they could file their lawsuit reeks of so much BS that I can't believe that the courts haven't tossed GoldieBlox's lawsuit out. They have no merit for filing a lawsuit. What I find troubling is that GoldieBlox used copyrighted music without permission and then sued the Beastie Boys on the basis of Fair Use. Sorry, guys, but using someone's copyrighted material in an advertisement for your company is NOT considered fair use.

    Finally, The Beastie Boys were willing to set everything aside as long as GoldieBlox pulled the ad and stopped using their song in their ad. Come to find out, GoldieBlox lied and kept pushing forward with their lawsuit.

    In the end GoldieBlox is going to lose and I think they're going to lose big because no competent judge will ever find the use of The Beasie Boys' music in GB's ad as fair use. That is a long stretch in itself and GB simply screwed up by not withdrawing their lawsuit in the first place.

     

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      Greevar (profile), Dec 11th, 2013 @ 12:27pm

      Re:

      All your points have been addressed in other posts. You've said nothing that hasn't already been refuted.

       

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      jupiterkansas (profile), Dec 11th, 2013 @ 12:27pm

      Re:

      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.

       

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        jackn2, Dec 11th, 2013 @ 1:37pm

        Re: Re:

        First, Glodiblox used another persons Ip in their commercial.

        Nothing else....

         

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          Anonymous Coward, Dec 11th, 2013 @ 2:18pm

          Re: Re: Re:

          Nothing else but ...
          Second as described above, Beastie Boys also used other people IP in their sons

          I have noticed that when they start out many artists make great use of fair use to create derivative works, and when their creative output tails off they try to deny anybody else the same fair use of what they have created.

           

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            jackn, Dec 11th, 2013 @ 2:30pm

            Re: Re: Re: Re:

            Second as described above, Beastie Boys also used other people IP in their sons

            I have noticed that when they start out many artists make great use of fair use to create derivative works, and when their creative output tails off they try to deny anybody else the same fair use of what they have created.


            None of this applies in the courtroom. You don't present a good rebuttal.

            so, again,

            Glodiblox used another persons IP in their commercial.

            Nothing else....

             

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        Anonymous Coward, Dec 11th, 2013 @ 1:57pm

        Re: Re:

        To borrow from a poster over on The AV Club when this originally broke: if Snickers "parodied" The Rolling Stones song "Satisfaction" by changing the lyrics to be "I CAN get some" so that they're parodying the original intent of the song because Mr. Jagger was unaware of the satisfaction that Snickers brand candy bars provides, would you agree that the version Snickers put out would qualify for Fair Use as a parody? Legitimate question because GoldieBlox and Snickers are both businesses out to make money, first and foremost, right?

         

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          Anonymous Coward, Dec 11th, 2013 @ 2:07pm

          Re: Re: Re:

          No. That is not criticism or commentary on the original.

          The *degree* of transformative nature is important, and the GoldieBlox version is a direct criticism of the themes in the original "Girls"

           

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            Anonymous Coward, Dec 11th, 2013 @ 2:28pm

            Re: Re: Re: Re:

            Yes it is an example of criticism and comment, but you just don't like it. It's criticism and comment that with Snickers in existence, there's no reason for a song to exist about "not getting satisfaction" the same way GoldieBlox says they are commenting on the original song.

            As you point out, the degree of transformative nature is going to be important, and so far we only have one change on the record - the lyrics. The BPM? Same. Drums? Same. Melody line? Same. Instrument used in melody line? Same. Start piling up the actual elements of a song and, wow, look at that, they barely changed anything. If you think just changing the words in this fashion is enough, well, you're wrong and this case is going to prove it to you.

             

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              Anonymous Coward, Dec 11th, 2013 @ 2:40pm

              Re: Re: Re: Re: Re:

              What about the original Stones song is your hypothetical Snickers ad criticizing or commenting on? Do explain.

              Wither regard to GoldieBlox, I think you are both factual wrong (though I'm not certain) and focsing on the wrong facts from a legal standpoint.

              First, I think GoldieBlox may have used a soundalike recording, so there would be no issue regarding the sound recording copyright. With regard to the composition, there is a question (in my mind at least) as to the originality of the melody.

              More importantly, you seem to be focusing on the degree to which GoldieBlox did something different as a measure of whether they did something "transformative." I am not aware of any cases saying that's how the transformative nature of something should be judged. Rather, the Campbell case shows that a parody's transformative nature should be judged largely by the degree to which it criticizes or comments on some quality of the original.

               

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                identicon
                P, Dec 11th, 2013 @ 3:18pm

                Re: Re: Re: Re: Re: Re:

                What about the original Stones song is your hypothetical Snickers ad criticizing or commenting on? Do explain.


                Well along that line, let's look at the favorite counter-example here: Weird Al.

                What exactly is "Eat It" commenting on about the original "Beat It?"

                What is the comment on "I Was in Jeopardy" that "I Lost on Jeopardy" makes?

                What does "Beverly Hillbillies" skewer about "Money for Nothing?" (Actually, I can arguably see a tangent here, if you consider that Clampetts got their "money for nothing," but I don't think it would stand up to scrutiny, especially since in the original J. Geil's song the phrase "money for nothing" is used sarcastically.)

                What does "I Love Rocky Road" say about "I Love Rock 'n' Roll?"

                "Jurassic Park" and "MacArthur Park?"

                What does "The White Stuff" have to say about "The Right Stuff?"

                "Gangsta's Paradis" and "Amish Paradise?"

                I could go on, as I thoroughly enjoy Weird Al's music.

                It seems that by the criteria of a parody being required to comment on the original work, Weird Al hardly qualifies at all. The only Weird Al song that I can think of off the top of my head that actually comments on the parodied song is "Smells Like Nirvana."

                 

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                  Anonymous Coward, Dec 11th, 2013 @ 4:23pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I wasn't asking about Weird Al. I think Weird Al presents a much weaker parody argument than the GoldieBlox example.

                   

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      Karl (profile), Dec 11th, 2013 @ 6:14pm

      Re:

      GoldieBlox used their music without permission and without licensing their music to be used in an advertisement that was designed to advertise for their company.

      They didn't use the Beastie Boys' music, they used a parody of the Beastie Boys' music. (Or possibly not the Beasties' music - I'll bring that up in another comment.)

      And commercial use does not necessarily mean that a use is not fair use. Even if that commercial use is in advertising. In fact, the vast majority of fair uses are by for-profit entities, including the fair uses enjoyed by the Beasties themselves.

      What I find troubling is that GoldieBlox used copyrighted music without permission and then sued the Beastie Boys on the basis of Fair Use.

      They were suing for a declaration of fair use. That's it. They weren't demanding money. If GoldieBlox won (or wins), the only that would happen is that the Beastie Boys wouldn't get to sue them. That was the entire point.

      The fact that the Beastie Boys actually are suing, shows that their instincts were probably correct.

      The Beastie Boys were willing to set everything aside as long as GoldieBlox pulled the ad and stopped using their song in their ad.

      No, you have that exactly backwards. Once GoldieBlox learned of MCA's wishes, they voluntarily stopped using the song in the commercial. And it was GoldieBlox who said they'd drop the declaratory judgement suit if the Beastie Boys promised not to sue for infringement. Instead, the Beasties decided to sue even after GoldieBlox stopped using the parody.

      If anything, GoldieBlox was naive, not malicious.

       

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    identicon
    Anonymous Coward, Dec 11th, 2013 @ 1:49pm

    "Stating accurately what the take-off is based on isn't trademark infringement, unfair competition or a violation of the band's publicity rights, as it didn't suggest support or endorsement by the band. It just, accurately, noted that the song was a Beastie Boys song. If the use of the song was fair use, then it's perfectly reasonable, as well, to highlight where the song was from."

    Except, that's not what happened.

    Prominently placing "Beastie Boys" in the thread title is likely to suggest endorsement for some, and there was no clarification that "Beastie Boys" solely referred to the source material being parodied. I actually thought the Beastie's probably licensed the use based in-part on their prominent billing (and their pro-female-empowerment statements in the years after the original "Girls" was released).

    This actually strikes me as a stronger argument than the copyright infringement argument.

     

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      Anonymous Coward, Dec 11th, 2013 @ 2:02pm

      Re:

      ...and that's what's going to help unravel the copyright infringement "parody protection" that GoldieBlox is aiming to use. Once the Beastie Boys can show real harm in the whole scenario, based on its commercial nature, the nature of the parody is going to be very obvious - parody secondary to commercial venture. I do agree they'll likely have a field day with the "implied endorsement" and overall pattern of behavior by GoldieBlox (see: changing video to private is not the same as removing it all together) is going to give the Beastie Boys team enough facts to really hammer this home.

      Also: Do you think the Beastie Boys legal team is going to uncover any emails between GoldieBlox & its creative resources that might reveal, well, foreknowledge and a plot to abuse the legal system for their own gain? It seems like they'd gotten away with a few infringements before so I'm betting they were getting bold, which often entails sloppy. Hmmm.

       

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        Anonymous Coward, Dec 11th, 2013 @ 2:09pm

        Re: Re:

        Why do you think "primary" or "secondary" purpose makes a difference? Does anybody dispute that 2 Live Crew's primary purpose was to sell records?

        I do think it's possible that the intent of GoldieBlox to use legal wranglings for publicity could play into a fair use analysis (contrary to Mike's indicating that the two must be kept separate).

         

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          Anonymous Coward, Dec 11th, 2013 @ 2:24pm

          Re: Re: Re:

          The distinction regarding primary and secondary come from the Supreme Court case that makes the distinction that a parody piece is most protected when the commercial transaction involves buying a copy of said parody piece - but creating a parody piece in support of a distinctly non-artistic purpose for which there are established channels (licensing) will, I think, be taken to task. Mike has dug himself in too deep on this one and has to try and assert that the two are separate because to back-track would show that he's not as well versed on copyright and the arts as he claims. Normally he's a pretty astute commentator and identifies important subjects, but this time he's high on his own supply and it's going to bring him great shame in the long run because it will thoroughly damage his credibility on this type of subject going forward.

          I certainly will point to TechDirt versus Simon Felix as the incorrect versus correct tack to take in this situation following the verdict / outcome I expect.

           

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            Anonymous Coward, Dec 11th, 2013 @ 2:35pm

            Re: Re: Re: Re:

            I meant to post this here:

            What case are you citing? Is that in Campbell? I don't recall that, but it's been a while since I actually sat down and read it.

            Let's leave Mike out of it for now. I don't take anything he writes at face value.

            However, in this case, I think the critical nature of the parody is blatantly obvious, regardless of whether it's in a commercial.

             

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            cpt kangarooski, Dec 11th, 2013 @ 8:30pm

            Re: Re: Re: Re:

            but creating a parody piece in support of a distinctly non-artistic purpose for which there are established channels (licensing)

            There are no established channels in this case. Remember: the Beastie Boys don't license their music to be used in ads.

            From Campbell v. Acuff Rose: This distinction between potentially remediable displacement and unremediable disparagement is reflected in the rule that there is no protectable derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market.

            The Beastie Boys, through their flat out denial to ever license to advertisers, have actually weakened their case by 'removing such uses from the very notion of a potential licensing market.' It's ironic.

             

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          jackn, Dec 11th, 2013 @ 2:28pm

          Re: Re: Re:

          Most of us aren't that dumb. We can tell the difference between a commericial advertisement that uses another's work to promote their product.

          Newsflash, Mike isn't always correct. He doesn't want copyright at all. Thats probably not a good solution. Without copyright, big corps could easily take the works of anybody and use them as they see fit. They can basically do that now, but there are some controls in place.

           

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            Greevar (profile), Dec 11th, 2013 @ 3:14pm

            Re: Re: Re: Re:

            You say that as if copyright makes being a professional artist possible. It doesn't. Copyright doesn't make copying impossible nor does it make people respect the concept of obeying the artist's wishes in the use of their works. There are other things in art than can be leveraged to make money that would allow the artist to give away their works. Believe it or not, there are people out there that will furiously throw money at you if they like your work enough and you give them ample opportunities to buy stuff from you. Pissing and moaning that people can't make a living without copyright just rings hollow.

             

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            Anonymous Coward, Dec 11th, 2013 @ 8:33pm

            Re: Re: Re: Re:

            ".. Mike isn't always correct. He doesn't want copyright at all."

            Is this some imaginary Mike you're talking about now or some Mike other than M Masnick?

             

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    identicon
    Anonymous Coward, Dec 11th, 2013 @ 2:28pm

    What case are you citing? Is that in Campbell? I don't recall that, but it's been a while since I actually sat down and read it.

    Let's leave Mike out of it for now. I don't take anything he writes at face value.

    However, in this case, I think the critical nature of the parody is blatantly obvious, regardless of whether it's in a commercial.

     

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      jackn, Dec 11th, 2013 @ 2:33pm

      Re:

      However, in this case, I think the critical nature of the parody is blatantly obvious, regardless of whether it's in a commercial

      Unfortunatly, it goes the other way,

      1. it's in a commercial
      stop - the end - Pay damages.
      2. the parody is blatantly obvious

       

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    kenichi tanaka (profile), Dec 11th, 2013 @ 5:46pm

    What everyone is forgetting is that GoldieBlox didn't create the video as a parody. If they were just doing a parody as a means of just doing it for fun and not to make money from it, then I would be on GB's side. But, the fact of the matter is that GoldieBlox made the decision to take the Beastie Boys song, claim "fair use", and then use it in a commercial to advertise their product.

    You can package it all up real pretty and claim "fair use" until you're blue in the face but once GoldieBlox took the Beastie Boys song and created a commercial advertisement for their product, it stopped being fair use.

    The concept of Fair Use is very limited to how you can claim that. Fact is, GoldieBlox is trying to make money of a song created by the Beastie Boys and they are trying to get out of having to pay for the rights to use that song.

    If I have a car in my driveway and I have not driven it in 10 years, that doesn't mean that you have the right to take my car out of my driveway for your personal use. This is exactly what GoldieBlox has done. They've taken something that belongs to someone else and are claiminig it for their own use without compensating the Beastie Boys for it.

    To add insult to injury, they pre-empted The Beastie Boys by filing a lawsuit against The Beastie Boys for using the Beastie Boys own music.

    I find it disingenuous that Mike Masnick would defend a company that took music created by someone else, use it in their commercial, and then turned around and sued the very people who created it.

    That's like a user on Techdirt suing Mike Masnick for comments that the user posted on Mike's website.

    Excuse me for saying this, but that's screwed up.

     

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      identicon
      Anonymous Coward, Dec 11th, 2013 @ 7:34pm

      Re:

      "You can package it all up real pretty and claim "fair use" until you're blue in the face but once GoldieBlox took the Beastie Boys song and created a commercial advertisement for their product, it stopped being fair use."

      People keep saying this as if it were true. Puzzling.

      Let's try this, what makes you think a commercial advertisement cannot be fair use?

       

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      Rapnel (profile), Dec 11th, 2013 @ 8:07pm

      Re:

      I definitely think that this version is a parody. Perhaps they should've titled the page "Beastly Boys" but ... This version is a piece that seems to stand on its own.

      Your attempt at bringing a car into this is flawed, fatally. Nobody has taken anything. The song was a template for further creativity, a result that happens to "reverse" the message of the role for girls as well. At best, someone saw your car in the driveway and said "I'm gonna get a car like that but with a totally different color and then I'm gonna sell ice-cream out of it".

      I should think that the Beasties don't want to go all the way with this one - and the RIAA definitely doesn't.

      The Beasties should settle, and not take one red cent. If they demanded "some profits" they would be the ultimate sell-out and they would've defeated the entire premise and they would become just another sell-out in the crowd. They should let the girls have their parody and both parties should agree to stop there. But that's just me and I don't really care and were it that I would I would download them both without prejudice and were it that I could I would download your car, if it was cool enough.

      And I have no doubts that this website has had its legal chain rattled already so I don't think it's like that either. Maybe if someone created Cleantech.com and espoused the moral requirements of content filtering dressed with the look & feel of this web site.. but didn't allow comments then you might be close.

      The Goldieblox people did not take and use a Beastie song, they used a Beastie song to create a new song. The Mona Lisa has been photo-shopped and is now a boy smoking a cigar in a tiki bar with palm trees in the background. Both works stand on their own.

       

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      Mike Masnick (profile), Dec 11th, 2013 @ 11:13pm

      Re:

      You can package it all up real pretty and claim "fair use" until you're blue in the face but once GoldieBlox took the Beastie Boys song and created a commercial advertisement for their product, it stopped being fair use.

      You keep claiming that, even though it's been explained at least a dozen times that, while you make think that's true, it's not what the law says. At all.

      http://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Pictures_Corp.

      The concept of Fair Use is very limited to how you can claim that. Fact is, GoldieBlox is trying to make money of a song created by the Beastie Boys and they are trying to get out of having to pay for the rights to use that song.

      And, has also been explained repeatedly, just because it's commercial use, does not mean it's not fair use.

      http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

      To add insult to injury, they pre-empted The Beastie Boys by filing a lawsuit against The Beastie Boys for using the Beastie Boys own music.

      Filing for declaratory judgment is *perfectly normal* and in fact makes tremendous sense in cases like this, where the only definitive way to make a fair use claim is to have a judge say so. So, Goldieblox did the most expedient thing towards getting a fair use ruling, filing for a DJ. From what you wrote, it appears that you don't understand what a declaratory judgment is. They're not "suing" for money -- they're just asking a judge to confirm that it's fair use, because they believe that the Beastie Boys might sue. The fact that they HAVE now sued suggests they were right, and they made the smart move of filing the DJ to get the case in their home court.

      I find it disingenuous that Mike Masnick would defend a company that took music created by someone else, use it in their commercial, and then turned around and sued the very people who created it.

      Because you don't seem to understand the details or the law. There's nothing "disingenuous" about it.

      That's like a user on Techdirt suing Mike Masnick for comments that the user posted on Mike's website.


      No, actually, it's not anything like that.

       

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        jackn, Dec 12th, 2013 @ 10:40am

        Re: Re:


        You can package it all up real pretty and claim "fair use" until you're blue in the face but once GoldieBlox took the Beastie Boys song and created a commercial advertisement for their product, it stopped being fair use.

        You keep claiming that, even though it's been explained at least a dozen times that, while you make think that's true, it's not what the law says. At all.


        Even if you claim is doesn't apply TWO dozen times, in the end, here how it will go down.

        $$ from glodiebox to bb
        globieblox 2 stop using the parody of the song.

        Sorry dudes, there is no other way this is going to go down.

         

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          Rapnel (profile), Dec 12th, 2013 @ 1:40pm

          Re: Re: Re:

          Place your bets, place your bets.

           

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          JMT (profile), Dec 12th, 2013 @ 3:12pm

          Re: Re: Re:

          You may well be right. Lot's of cases are settled instead of being tested on their merits, because that's often the cheapest and easiest way to end the matter whether you're right or wrong. That's not a positive indictment of the BB's case, it's a negative indictment of the legal system. I'm sure people like you will gloat about such a settlement but you won't have proven a thing about the the legal issues. The BB's will simply end up looking like hypocritical bullies and GoldieBlox will carry on trying to sell products with a positive message. Hardly a win for anyone concerned.

           

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          identicon
          Anonymous Coward, Dec 12th, 2013 @ 4:43pm

          Re: Re: Re:

          That may very well happen. But you can see how that is only loosely correlated with being fair use or not, right?

           

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      JMT (profile), Dec 12th, 2013 @ 2:34pm

      Re:

      "What everyone is forgetting is that GoldieBlox didn't create the video as a parody."

      Nobody is forgetting that because that's not what has happened here. GoldieBlox's mission statement is "Building games for girls to inspire future engineers". The whole point of their products is to send a positive, empowering message to young girls. They have very deliberately selected a song that originally conveyed a demeaning view of girls and replaced the lyrics with a strong opposite message that directly reflects the company's purpose (and parodies the original). Of course this is being used to advertise products, but both the products and the song are intended to send the same message.

      "If I have a car in my driveway and I have not driven it in 10 years, that doesn't mean that you have the right to take my car out of my driveway for your personal use. This is exactly what GoldieBlox has done."

      Hmm, I thought people arguing in support of IP had figured out that making terrible analogies with physical objects always makes you look a bit clueless, but maybe not...

       

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    Karl (profile), Dec 11th, 2013 @ 6:30pm

    Do the Beastie Boys even have standing to sue?

    Here's an interesting question, completely independent of the fair use angle.

    As Mike pointed out in an earlier story about this case, the Beastie Boys' "Girls" was intentionally based upon "Shout" by the Isley Brothers. Their producer, Rick Rubin, explicitly admitted that it was "a rap version of 'Shout'."

    The melody and chord progression is a direct copy. While I have no doubt that the Beasties' use is either licensed or fair use, in neither case would it allow the Beastie Boys to claim copyright over the melody and chord progressions, both of which remain with Shout's copyright holder. As with all derivative works, the Beasties would only hold the copyright over the new material - in this case, the lyrics and the actual sound recording.

    But here's the thing. None of that was used by GoldieBlox. GoldieBlox changed the content of the lyrics almost entirely, and did not use any of the sound recording in their own version. That means the only things GoldieBlox could be accused of infringing upon was the melody and chord progression of "Girls" - exactly the same elements, and only those elements, that the Beasties lifted from the Isley Brothers.

    So, it's entirely possible that the Beastie Boys don't even have standing to sue. If GoldieBlox is infringing upon anyone's copyright, it's the copyright of the Isley Brothers (or more likely their assignees), and they're not a party to this lawsuit.

    If that's the case, then the judge probably wouldn't even get to the fair use question. But it's a weird situation, and I don't know of any case that dealt with this explicitly, so I'm not sure what would happen.

     

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      Anonymous Coward, Dec 11th, 2013 @ 7:38pm

      Re: Do the Beastie Boys even have standing to sue?

      I don't think it's quite as clear cut as that. They did not copy the melody note-for-note from Shout, but the parody does copy the Beasties' melody note-for-note.

      Then there's the whole arrangement aspect of pairing certain instruments and the inflection of the spoken words, which are also copied by GoldieBlox.

      I think it helps when looking both at the "amount and substantiality" prong of fair use, and potentially at an estoppel theory (i.e., if what you did is fair use, you are estopped from arguing what we did isn't), but I don't think it resolves the matter without getting to fair use.

       

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        Karl (profile), Dec 11th, 2013 @ 11:54pm

        Re: Re: Do the Beastie Boys even have standing to sue?

        OK, just wrote a long reply, but it may have gotten eaten by Techdirt's servers. Let's find out.

         

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        Karl (profile), Dec 12th, 2013 @ 10:26am

        Re: Re: Do the Beastie Boys even have standing to sue?

        Okay, I guess it did get eaten...

        I don't think it's quite as clear cut as that. They did not copy the melody note-for-note from Shout, but the parody does copy the Beasties' melody note-for-note.

        Then there's the whole arrangement aspect of pairing certain instruments and the inflection of the spoken words, which are also copied by GoldieBlox.


        The Beasties certainly did copy the melody note-for-note, at least as much as that's possible when changing a soul song to a rap song. And the inflections are also exactly the same - when the Beasties sing the lyric "Girls" is exactly where the Isleys sing "Shout," for example.

        It's pretty obvious when you listen to this mash-up of the two:
        https://soundcloud.com/itshard2bgod/beastie-boys-vs-isley-brothers

        Certainly, if the Isleys sued the Beasties for infringement, they would win (barring fair use).

        So, the question is: if GoldieBlox used only those parts of the Beasties' song that are infringing upon "Shout," do the Beasties still have standing to sue? I actually don't know, since I've never run across a case like that.

         

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          Anonymous Coward, Dec 12th, 2013 @ 4:49pm

          Re: Re: Re: Do the Beastie Boys even have standing to sue?

          As that mashup makes clear, nowhere in the original Isley recording do you hear the melody played by the electronic toy piano that is so prevalent in the Beastie song.

          Yet, that melody is the the most obviously copied portion of the GoldieBlox song.

          I.e., GoldieBlox clearly used something that was not taken directly from the Isleys. It's a pretty simple melody, so maybe the Beasties got it (consciously or unconsciously) from somewhere else, but not Shout!

          There is actually some interesting (and mistaken, in my view) case law suggesting that you can't claim copyright in an unauthorized derivative (even in the portions that are original), so that could be an issue. But, as I say, I think that case law is mistaken.

           

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            Karl (profile), Dec 12th, 2013 @ 9:28pm

            Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?

            As that mashup makes clear, nowhere in the original Isley recording do you hear the melody played by the electronic toy piano that is so prevalent in the Beastie song.

            It may be hard to hear, but the toy piano part is simply a reworking of the bass line. Same notes, different octaves, and a very slightly different rhythm.

            That makes it an arrangement of the bass line. This could mean that it's eligible for a separate copyright as a derivative work, but I'm not sure that alone is enough to make it "significantly different from the copyrighted original" to be eligible for copyright protection. (From Gaiman v. McFarlane.)

            There is actually some interesting (and mistaken, in my view) case law suggesting that you can't claim copyright in an unauthorized derivative (even in the portions that are original), so that could be an issue.

            That's actually black-letter law. 17 USC 103(a) specifies that "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

            But that would require that the Beasties' version actually be unlawful, and that's not necessarily the case.

             

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              Anonymous Coward, Dec 12th, 2013 @ 9:56pm

              Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?

              The keyboard from "Girls" is nowhere near a note-for-note copy of the bass line from "Shout." You can call it a "reworking" if you want, but it includes different notes (not just different octaves) and a different rhythm. I'm not saying that it couldn't be considered infringing, but I don't think it gets GoldieBlox out of the woods for its note-for-note copy of the keyboard line.

              The case law I'm referring to holds that you can't have copyright protection for an authorized derivative. Period. Full Stop.

              The portion of the copyright Act you cites seems to make clear (to me, anyway, and to most courts application 103(a)), that you can have copyright protection in the original material you contribute to an unauthorized derivative (which is why the cases I'm referring to are wrong, in my opinion).

               

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                Karl (profile), Dec 13th, 2013 @ 2:33am

                Re: Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?

                The keyboard from "Girls" is nowhere near a note-for-note copy of the bass line from "Shout." You can call it a "reworking" if you want, but it includes different notes (not just different octaves) and a different rhythm.

                The different versions might jump to different octaves (e.g. a fourth up vs. a fifth down), but they're the same notes, in the same key. And the transitions between those notes happen at the same beats within the measure (one, two, three, the upbeat of three, the upbeat of four) even if the rhythms between those transitions are different.

                It's a different arrangement, but not nearly as different as e.g. a piano reduction of an orchestral score. Whether those elements are eligible for a separate copyright (assuming non-infringement) is something that only a judge could decide, in all likelihood.

                The case law I'm referring to holds that you can't have copyright protection for an authorized derivative. Period. Full Stop.

                That seems very odd to me, as I've seen numerous cases that held otherwise. (The aforementioned Gaiman v. McFarlane, Lee v. ART, Picket v. Prince.) It also directly contradicts 17 USC 103(b). The issue I've always seen focused on is whether the differences are significant enough to warrant additional protection. Can you cite the cases you're referring to?

                ...Unless you meant "unauthorized." That would make sense. I still wouldn't mind seeing those cases either way.

                The portion of the copyright Act you cites seems to make clear (to me, anyway, and to most courts application 103(a)), that you can have copyright protection in the original material you contribute to an unauthorized derivative (which is why the cases I'm referring to are wrong, in my opinion).

                It seems perfectly clear to me that it doesn't, though I recognize there's ambiguity in the language of the statute: "any part of the work in which such material has been used unlawfully" vs. "any part of the work in which such material has been used unlawfully." Again, which cases are you referring to?

                 

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                  Karl (profile), Dec 13th, 2013 @ 2:11pm

                  Re: Re: Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?

                  I recognize there's ambiguity in the language of the statute

                  Thinking about it, I believe that the statute is saying that if a derivative work is infringing, no part of it can be copyrighted. There are two reasons for this.

                  The first has to do with statutory construction. The statutes already say that copyright in a derivative work applies only to the new elements, and not to any part of the original work - whether the derivative work is infringing or not. So, there would be no reason at all to include that language in the statute, unless they meant it to be interpreted as I said.

                  The second is more decisive. It's well-settled law that copyrights are granted purely at the discretion of Congress, not as a matter of equity for authors. The monopoly privileges are purely statutory. So, if an author does not follow the statutes, they do not have any right to enjoy the monopoly authorized by those statutes. Obviously, if one infringes upon the rights granted by statute, they are not following the statutes.

                  So, it makes sense, even if the results seem unfair to the authors of derivative works.

                   

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

    •  
      identicon
      Anonymous Coward, Dec 12th, 2013 @ 1:51am

      Re: Do the Beastie Boys even have standing to sue?

      Another question on the same lines, who holds the copyright, the Beastie Boys, or their record label?

       

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

      •  
        identicon
        Anonymous Coward, Dec 12th, 2013 @ 4:50pm

        Re: Re: Do the Beastie Boys even have standing to sue?

        Beasties and/or their publishing company hold the copyright to the musical composition (99% sure), and their record label (or some record label, anyway) probably holds to the copyright to the sound recording (which I don't believe is at issue in this dispute).

         

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

  •  
    icon
    ahow628 (profile), Dec 12th, 2013 @ 6:24am

    Sabotage

    Listen all of y'all it's a sabotage.

     

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

  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Dec 12th, 2013 @ 6:51am

    No one's going to take you seriously.

    And here's a good reason why.


    The fact is, I bring more substance to these discussions than most. Mike is blocking me because he can't stand that (1) I'm more knowledgeable than him about some of things he writes about, and (2) I'm critical of him.

    That's just sad.

    Yes, I think he's a "chicken" because he's too scared to ever jump into the comments and have a substantive discussion about things that actually matter. He's more than happy to discuss stupid arguments, like the guy who is saying that since it's an advertisement it must not be fair use. He'll right entire articles "busting" that "myth." But he won't actually discuss the things that aren't so obvious. And he'll never actually discuss what his personal beliefs are when it comes to copyright.

    And, good grief, with his TERRIBLE non-analysis of the trademark, unfair competition, and publicity claims the Beastie Boys are striking back with. Of course, Mike won't discuss any of that either. Sorry, but if it clucks like a chicken and walks like a chicken, it's a chicken.

    I think it's hilarious how you guys defend him as he desperately tries to silence a critic. A critic, mind you, that he's too chicken to actually engage meaningfully. Classic Techdirt. Classic Mike. Too chicken to even admit publicly that he's blocking me.

     

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

  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Dec 13th, 2013 @ 8:46am

    No one believes you, Prenda fanboy.

    No, the sad thing is that everyone knows it's true. Mike is actively attempting to silence me because I'm critical of him and he's too scared to actually engage his critics on the merits when the issue isn't something easy and obvious.

    And it's also true that he refuses to ever explicitly explain his position on the core issues of copyright because, I can only assume, he's ashamed to admit it. What else could explain someone so opinionated about copyright yet so unwilling to have a frank and open discussion about his own position?

    And the sad thing is that he's so desperately afraid that all he can do is attack the credibility of those who dare challenge him. Like your sad little post here. Wink.

     

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


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