Goldieblox Agreed To Pay Charity $1 Million For Using Beastie Boys' Girls

from the fair-use-gets-pricey dept

It appears that the "settlement" between the Beastie Boys and Goldieblox was somewhat more significant than people imagined. Goldieblox will be contributing 1% of its revenue to a charity chosen by the Beastie Boys until it's paid up $1 million. Fair use ain't cheap, apparently.

Back in March, we noted briefly that the Beastie Boys and Goldieblox had settled their big legal dispute, over Goldieblox doing a commercial that included a parody of the Beastie Boys' song "Girls." We still strongly believe that this was a clear cut case of fair use, but the whole case got more emotionally complicated by the Beastie Boys general prohibition on the use of its songs in advertising, including Adam Yauch putting in his will that his music can not be used in ads. Legally, that statement has no bearing on the fair use analysis, but to many people, to ignore those wishes still felt pretty damn icky. Goldieblox appeared to fairly quickly realize that they were losing the war of public perception and capitulated.

However, the terms of the "settlement" were kept secret -- until now. And that's only because in a different legal fight between the Beastie Boys and Monster Energy Drink involving a Monster Energy Drink event where DJs played tribute to the Beastie Boys the day after Yauch passed away. The specifics of that case really aren't that important, but a recent filing in that lawsuit, concerning a "reasonable" licensing amount, also happens to reveal the settlement terms of the Goldieblox settlement (via Eriq Gardner):
The GoldieBlox Settlement granted GoldieBlox a retroactive license to use the musical composition of “Girls” between November 18, 2013 and November 28, 2013.... In exchange, GoldieBlox agreed to make annual payments of 1% of its gross revenue, until the total payments reached $1 million, to a charitable organization chosen by the Beastie Boys and approved by GoldieBlox which supports “science, technology, engineering and/or mathematics education for girls.” ... The parties also agreed to make certain, specifically worded public statements... and to keep the settlement confidential, with certain exceptions, including its use in litigation.
While $1 million donated to a charity that focuses on "science, technology, engineering and/or mathematics education for girls" is certainly a good thing, and settling this fight amicably is a good resolution, it's still somewhat disappointing. Again, the original usage was almost certainly fair use, and I always worry when people diminish fair use, or assume that there can be no fair use in commercial cases. That's simply untrue, and agreeing to pay $1 million, even to charity, for a clear fair use, which was online for just 10 days, did nothing to harm the original song (and, in fact, brought a lot more attention to some important ideas), seems like an unfortunate result.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, May 12th, 2014 @ 9:09am

    Glad stem stuff will get a boost, but beastie boys need to realize they just are not that important to people anymore.

    Fair use is fair use and they come off as bullies.

     

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  2.  
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    Michael, May 12th, 2014 @ 9:12am

    You gotta fight for your right to get paid any time someone cries 'fair use'.

     

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    That Anonymous Coward (profile), May 12th, 2014 @ 9:25am

    It is so nice that copyright law can't be decided without worrying about feelings and perception.

    If a corporation can't take a stand for fear of public backlash, even if they are found to be in the right, what chance does the public have?

     

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  4.  
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    avideogameplayer, May 12th, 2014 @ 9:27am

    Let's be real about this:

    How much more would it cost Goldieblok to get a fair use ruling? Probably more than the $1 million they settled for...

    And the money is going to a charity so at least it's not going to those MAFIAA bozos...

     

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  5.  
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    Anonymous, May 12th, 2014 @ 9:28am

    Not fair use

    Liebovitz was a clear case of parody, while Goldieblox was just using someone else's song to move their overpriced, second-rate edu-toys -- same as Apple using Eminem's "Lose Yourself" without his permission to move iPods.

    "Does Mike Masnick find the infringer to be sympathetic?" isn't a factor in the fair use analysis that I've seen any court employ.

     

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  6.  
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    Michael, May 12th, 2014 @ 9:31am

    Re:

    How much more would it cost Goldieblok to get a fair use ruling? Probably more than the $1 million they settled for

    Which is a complete travesty. Everyone that is part of the legal system in the US should be embarassed that it can so easily be used to harm someone financially even if they have done nothing wrong.

     

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  7.  
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    Anonymous Coward, May 12th, 2014 @ 9:33am

    >While $1 million donated to a charity that focuses on "science, technology, engineering and/or mathematics education for girls" is certainly a good thing,

    it's just not as good as $1 million donated to a charity that focuses on suicide prevention for boys.

     

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  8.  
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    jackn, May 12th, 2014 @ 9:34am

    "We still strongly believe that this was a clear cut case of fair use"

    Well, you were/are wrong.

    Your examples in the previous article don't equate to this situation.

    Its ok, everyone is wrong once in a while, just don't double down on your flawed logic.

     

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  9.  
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    Michael, May 12th, 2014 @ 9:35am

    Re: Not fair use

    The song in the Goldieblox spot was definitely parody.

     

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  10.  
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    jackn, May 12th, 2014 @ 9:36am

    Re:

    Lets be even more real. How much could thay have payed for to use the song in their commercial venture? (50,000/ 100,000, maybe even less?)

     

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  11.  
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    Anonymous Coward, May 12th, 2014 @ 9:36am

    I'm going to surprise myself by saying that at least that money is going to be contributing to making a difference. Not happy with the Beasties, though.

     

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  12.  
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    Anonymous Anonymous Coward, May 12th, 2014 @ 9:37am

    Fair Use Consideration

    Fair use aught to be considered very near the beginning of each and every copyright infringement case. In fact, it aught to be that the plaintiff have considered and written out the fair use tests, and how they feel they don't apply of course, in the original suit.

    That is isn't is a testimony to the abusive rules promulgated by the incumbent gatekeepers.

     

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  13.  
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    jackn, May 12th, 2014 @ 9:37am

    Re: Re: Not fair use

    sorry dude, Parody alone isn't enough of defense.

     

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  14.  
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    jackn, May 12th, 2014 @ 9:39am

    Re: Fair Use Consideration

    I think they did consider it, it was ruled NOT FAIR ( i mean that part is obvious - that it is NOT FAIR use).

    Whats your next tactic?

     

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  15.  
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    Michael, May 12th, 2014 @ 9:39am

    Re: Re:

    The Beastie Boys will not license their music for commercials - at all.

     

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  16.  
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    Michael, May 12th, 2014 @ 9:41am

    Re: Re: Re: Not fair use

    I completely agree, it is not.

    I was just responding to the original comment that said that it was not parody. It was.

     

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  17.  
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    Michael, May 12th, 2014 @ 9:43am

    Re:

    Feel free to present your arguments against this being a case of fair use.

    Just saying "you were/are wrong" is not a very good argument.

     

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  18.  
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    Anonymous Coward, May 12th, 2014 @ 9:46am

    There is a good chance that goldieblox was already planning to divert some of its revenue to such a charity. This means both parties keeping up their reputation while not having to spend a lot of money. (Would this count as a victory for the mediator?)

     

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  19.  
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    Michael, May 12th, 2014 @ 9:50am

    Re: Fair Use Consideration

    That is sort-of what happened here.

    The Beastie Boys had their lawyers send a letter to Goldieblox informing them that they believed the spot was infringing and Goldiblox actually sued for declaratory judgement that their spot was not infringing.

    Then, if memory serves me, the Beastie Boys counter-sued for infringement, the internet buzzed a lot about it, Goldiblox got a bunch of bad press, and then they settled in secret.

    Settling was probably the best thing for Goldiblox, but that does not mean it was not fair use.

     

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  20.  
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    Michael, May 12th, 2014 @ 9:52am

    Re: Re: Fair Use Consideration

    I don't remember there being a ruling. If you have a link to one, I would appreciare you posting it.

     

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  21.  
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    Anonymous Coward, May 12th, 2014 @ 9:54am

    Re:

    I do agree. I work in a school district (have worked in 4 over the years) and all I see are signs that say things like 'the most important thing a girl wears is her confidence' posted in the buildings (usually Elementary, but occasionally in the HS buildings also).

    Im glad girls are getting their fair shake at stuff, but what does that tell the little boys who never see a poster that tells them how important they are also.

     

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  22.  
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    b, May 12th, 2014 @ 10:00am

    Re:

    Since when is this fair use? Only a loon would think it's fair to use someone's hard work to sell their own product. For years, artists have avoided selling out yet Goldieblox just took.

    They're not bullies. Goldieblox is the bully by taking what's not theirs and then thinking that it's all okay.

     

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  23.  
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    bob, May 12th, 2014 @ 10:02am

    Re:

    Since when was Goldieblox right? It wasn't fair use. They are engaged in a commercial venture. They took what wasn't theirs for their own profit. How is that fair?

     

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  24.  
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    Anonymous Coward, May 12th, 2014 @ 10:02am

    Re: Fair Use Consideration

    In fact, it aught to be that the plaintiff have considered and written out the fair use tests, and how they feel they don't apply of course, in the original suit.


    Your suggestion is that the plaintiffs should make the defendants case for them?

     

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    bob, May 12th, 2014 @ 10:03am

    Re:

    And who says they would even get one. What they did wasn't fair. They took what wasn't theirs and they used it to profit. That's not fair use. Period.

    You can go on dreaming and drinking the Kool aid around here but that won't change how fair use is interpreted. They were guilty of taking and so it's good they're paying.

     

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  26.  
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    jackn, May 12th, 2014 @ 10:04am

    Settling was probably the best thing for Goldiblox (agreed)

    but that does not mean it was not fair use (and it doesn't mean it was).

    IMO, just being parody is not enough.

    Fair use can include commercial uses, but I don't think fair use is applicable here.

     

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  27.  
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    bob, May 12th, 2014 @ 10:05am

    Re: Re:

    There are many of them. The easiest one is that Goldieblox took what wasn't theirs and used it for profit. They didn't write the original song. The Beastie Boys are entitled to compensation.

     

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  28.  
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    Michael, May 12th, 2014 @ 10:05am

    Re: Re:

    There are a number of factors in determining fair use - the fact that this was commercial is important, but no less important than the fact that it was a parody.

    There were a number of good write-ups about it at the time (a google search will bring you to them) and I agree that it was probably fair use.

    I also believe that Goldiblox shouldn't have used it anyway.

     

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  29.  
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    jackn, May 12th, 2014 @ 10:06am

    Re: Re: Re:

    Good for them. There was a day when this was a respectable position.

     

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  30.  
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    jackn, May 12th, 2014 @ 10:07am

    Re: Re: Re:

    seems reasonable

     

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  31.  
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    Anonymous Anonymous Coward, May 12th, 2014 @ 10:07am

    Re: Re: Fair Use Consideration

    My suggestion is that the complainer think about what they are about to do so that they do not waste the courts and defendants time and money.

    Fair use is often not considered at all, and that is a shame.

    If fair use was required to be considered, and the four factor test (did I get that right?) is applied beforehand, and considered in the light the court might see it, many suits would never be filed.

     

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  32.  
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    That Anonymous Coward (profile), May 12th, 2014 @ 10:12am

    Re: Re:

    aww bob never change...
    Reading is a useful skill and I have hope someday you might learn to do it and figure out that comprehension thing too.

    "even if they are found to be in the right"
    If would be the word you skimmed over in your frothing rage.

    Commercial venture doesn't negate the concept of fair use, despite your desire to have that be true. Had this case actually managed to move forward maybe then you could bitch about how the court ruled wrong, but we never made it that far. There is a case that can be made for both sides of the issue, not just the one you imagine, and a court ruling would have helped settle that issue.

    In the future, before hitting reply, how about you actually read what you are replying at least 3 times so you catch all of the words. I understand that a long word like if can be hard for you to parse.

     

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  33.  
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    That Anonymous Coward (profile), May 12th, 2014 @ 10:15am

    Re: Re: Re:

    And what is your view of the labels who took music they did not have the rights to and made millions in Canada with their commercial venture? If they faced the same penalties they insist everyone else pay they were on the hook for billions.

     

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  34.  
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    Internet Zen Master (profile), May 12th, 2014 @ 10:16am

    Re: Re: Fair Use Consideration

    Thing is, suing first instead of trying to work things out without dragging the courts into this was, well, a dick move by GoldieBlox, regardless of the song's fair use status.

     

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    jackn, May 12th, 2014 @ 10:16am

    Re: Re: Re:

    There were a number of good write-ups about it at the time (a google search will bring you to them) and I agree that it was probably fair use.

    If you search your own mind and intellect, you may find yourself realizing, "Hey wait, this isn't fair use. Those guys on the internet are just biased because of there desire for NO copyright." If there is not copyright, all uses are fair. I think you are in this camp if you think this is fair use. e.g. you are stuck in a cognitive disorder if you think this is fair use and you support copyright in any fashion.

     

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  36.  
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    jackn, May 12th, 2014 @ 10:19am

    Re: Re: Re:

    ah, the marching cry of the anonymous coward.

    "Commercial venture doesn't negate the concept of fair use,"

    Here's one for you, "Parody doesn't negate the concept of copyright infringment."

     

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  37.  
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    jackn, May 12th, 2014 @ 10:21am

    Re: Re:

    nothing wrong, except for copyright infringement, lets not forget that.

     

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  38.  
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    That Anonymous Coward (profile), May 12th, 2014 @ 10:21am

    Re:

    and that really is the pity, the courts could have clarified everything... but public opinion trumped pursing the actual law in this area.

    Far to often the opinions of copyright holders are taken as being actual law, despite there not being real support in the law as written for their demands. One would think that if this was such an open and shut case, a short trial would have provided the answers and guidance needed in this area so we could stop relying on personal opinions and rely on the law.

     

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  39.  
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    Anonymous Coward, May 12th, 2014 @ 10:23am

    Re:

    Seeing as it wasn't even remotely close to being fair use, no amount of money would have bought them such a ruling. And they knew it.

     

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  40.  
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    Michael, May 12th, 2014 @ 10:31am

    Re: Re: Re: Re:

    If there is not copyright, all uses are fair.

    This statement shows a lack of understanding of copyright law in the US. Did you attend a foreign law school?

     

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  41.  
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    Michael, May 12th, 2014 @ 10:36am

    Re: Re: Re:

    So if it had not been for profit, it would have been ok? Or if, say, The Beastie Boys had used samples in some of their music they may be on the wrong end of someone else's claim?

    Is "for profit" your only argument against fair use? While that may be an emotional subject for you, it is simply not the law. Do you have any insight about this particular use and how ALL of the factors for fair use apply to it?

     

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  42.  
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    jack, May 12th, 2014 @ 10:40am

    Re: Re:

    You don't think there is a law that covers someone using your work in there commercial?

    It was an open and shut case. They paid it up, because there are laws that cover someone using your work in there commercial.

     

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  43.  
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    Michael, May 12th, 2014 @ 10:41am

    Re: Re: Re: Fair Use Consideration

    I agree, but it is also what is made necessary by the law because of the way fair use is determined.

    The simple version is by suing for a declaratory judgement that the use was not infringing, they get to make the fair use argument up front. If they had waited, they would not have been able to make the fair use argument until later in the case - and the difference can be millions of dollars in legal fees.

     

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  44.  
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    jackn, May 12th, 2014 @ 10:42am

    Re: Re: Re: Re: Re:

    Yay, I win again!

    Thanks, my work here is done.

     

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  45.  
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    jack, May 12th, 2014 @ 10:44am

    Re: Re: Re: Fair Use Consideration

    The song has a fair use status? what does that mean? Can we all use it in our own commercials? do we even need to parody it? Can we just use the actual beastie boy recordings?

    Thank-you fair use!

     

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    jackn, May 12th, 2014 @ 10:45am

    Re:

    you gotta fight for your right to rip-off other people's work.

     

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  47.  
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    jackn, May 12th, 2014 @ 10:46am

    Re: Re: Re:

    I cant believe how many times today I type THERE instead of their.

     

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  48.  
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    jackn, May 12th, 2014 @ 10:51am

    Re: Re: Re: Re:

    Is "for profit" your only argument against fair use? -NO



    Emotional subject - you should check yourself - Have you heard of projecting? You are really seeing reality, but a distortion caused by your 'emotional bias.'

    is Parody your only argument?

     

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  49.  
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    Michael, May 12th, 2014 @ 10:52am

    Re: Re:

    Did you send them a check, or are you claiming fair use?

     

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  50.  
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    That Anonymous Coward (profile), May 12th, 2014 @ 11:07am

    Re: Re: Re: Re:

    Parody doesn't mean it is infringement either.

    This is why we have laws, rather than your feels to decide these things.

     

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  51.  
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    Anonymous Coward, May 12th, 2014 @ 11:09am

    Re: Re:

    You're flat-out lying, you know.

     

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  52.  
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    Anonymous Coward, May 12th, 2014 @ 11:10am

    Re: Re: Re:

    That has nothing to do with fair use.

     

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  53.  
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    Michael, May 12th, 2014 @ 11:11am

    Re: Re: Re: Re: Re:

    Here would be my short analysis:

    1) the purpose and character of your use (dead heat)
    Parody is transformative and the original song appears to be send a different message, but a commercial use. I think these two pretty well cancel each other out here.

    2) the nature of the copyrighted work (-1 for fair use)
    The original is a for-profit commerially distributed song. It was already published previously.

    3) the amount and substantiality of the portion taken (+1 for fair use)
    This goes to both length of the song and the portions of it that were used. The lyrics were different, the tune was not exactly the same, and only a portion of the song was actually used rather than a song of equal length.

    4) the effect of the use upon the potential market (+1 for fair use)
    There was no market for this song in commercials because the Beastie Boys do not license it for commercials. The commercial is not a substitute for the original song.

     

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  54.  
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    That Anonymous Coward (profile), May 12th, 2014 @ 11:12am

    Re: Re: Re:

    So the lyrics were all the same?
    No transformation of it...

    If it was such an open and shut case then why settle? The Beasties could have walked away with much more than they got, and struck a blow...

    Or was it worrying that a court might rule that it was parody and allowed under the law...

     

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  55.  
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    jupiterkansas (profile), May 12th, 2014 @ 11:17am

    Re:

    And going to a charity that will help create more customers for Goldieblox products - something they would probably do anyway if they were a highly profitable company.

    Not to mention I'd never heard of Goldieblox before this incident, so it's pretty much a marketing expense.

    And the Beastie Boys maintain their street cred.

    Everyone's a winner here.

     

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    jackn, May 12th, 2014 @ 11:29am

    Re: Re: Re: Re: Re:

    Yep, and its good for me. Like in this case, I always win.

     

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    jackn, May 12th, 2014 @ 11:30am

    Re: Re: Re: Re:

    are you just a punk kid? Really, this is your argument, "look over there! Really, look over there"

     

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    identicon
    jackn, May 12th, 2014 @ 11:37am

    Re: Re: Re:

    Sore loser much? Can't live in a world with grey areas? Why not just go full pirate, its all black and white to a pirate.

     

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  59.  
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    jack, May 12th, 2014 @ 11:43am

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

    1) the purpose and character of your use (dead heat)
    Parody is transformative and the original song appears to be send a different message, but a commercial use. I think these two pretty well cancel each other out here.


    I say -1 to glodlyblox. More than just a commercial use (i.e. a documentary, etcc..), but a commercial. so -1 to the infringer's team.

     

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    identicon
    Anonymous Coward, May 12th, 2014 @ 11:45am

    Re: Re: Re: Re:

    Yes, this

    So the lyrics were all the same?
    No transformation of it...

    that's just for babies trying to justify copyright infringment.

     

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  61.  
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    Anonymous Coward, May 12th, 2014 @ 11:46am

    I know this is Techdirt, but I'm going to suggest that we look at the evidence anyway:

    1. In the settlement agreement, GoldieBlox agreed to pay $1,000,000 to charity for a license from the Beastie Boys to use "Girls" for the period of time that they had used it.

    2. GoldieBlox also admitted that they had made a mistake in not asking the Beastie Boys for a license before using "Girls."

    3. GoldieBlox also agreed to publicly apologize to the Beastie Boys on their website.

    4. GoldieBlox also agreed to publicly promise to not make the same mistake in the future.

    5. As per the settlement agreement, the Beastie Boys agreed to do nothing other than grant the license to GoldieBlox.

    Given all of that, it's abundantly clear that GoldieBlox realized that it had made a mistake in not getting a license in the first place. If the fair use argument were even remotely as clear as Mike thinks, why would GoldieBlox settle on such terms? Remember, it was GoldieBlox who sued first.

    Keep digging that hole, Mike. It's not like anything could hurt your credibility at this time--you don't have any.

     

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  62.  
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    Heavy Weapons Guy, May 12th, 2014 @ 11:52am

    Re: Re: Re: Re: Re:

    Entire comment section is babies!

     

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  63.  
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    Michael, May 12th, 2014 @ 11:53am

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

    More than just a commercial use (i.e. a documentary, etcc..), but a commercial

    Do you have any legal basis for believing that "use in a commercial advertisement" is elevated to a higher level of commercial use?

    Also, this goes back to an earlier question: Is "for profit" your only argument against fair use?

     

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    John85851 (profile), May 12th, 2014 @ 12:06pm

    Law versus emotion

    As usual, companies have to fight the "court of public opinion": even if they're 100% correct (as in a case of fair use), the public might complain. Then, in order to stop any drop in sales, the company gives in and settles.

    Like you said, what does anyone's will have to do with fair use or parody? Nothing, but it makes a stronger emotional case against GoldieBlox.

     

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    Michael, May 12th, 2014 @ 12:06pm

    Re:

    There are a couple of things to consider.

    First, when the Beastie Boys counter sued, it was pretty clear that this could turn into a long and costly battle regardless of the outcome. GoldieBlox may have sued for the declaratory judgement simply hoping that the Beastie Boys would simply back down to avoid the legal fight. Just because Goldiblox sued does not mean they were prepared to spend millions of dollars in legal fees.

    Second, and probably more importantly, between the Goldiblox filing and the Beastie Boys counter-suit, Goldiblox lost very badly in the court of public opinion. Regardless of whether or not they were on good legal ground, their own customer base decided what they had done was dickish. Once your customers have decided what you did was an asshat move, having a judge tell them it wasn't isn't going to get your sales back.

     

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    Anonymous Anonymous Coward, May 12th, 2014 @ 12:11pm

    Re:

    So what did you expect from a settlement? There was no decision, so that cannot be it. They did not lose because they were wrong.

    Those terms, whether they reflect the truth or not, are small potatoes compared to possibly spending multi-millions of dollars more on a full trial. Even with the egg on the face.

    They may have taken the blame as part of 'losing' because they chose to settle, but that does not mean they were wrong. They chose to settle for a million bucks and a bit of humiliation vs. paying several more millions of dollars to make a point, and maybe running into an unreasonable judge.

     

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    RonKaminsky (profile), May 12th, 2014 @ 12:45pm

    Sorry, no

    > which was online for just 10 days

    Uhm, I totally agree with the fair use thing, but Mike should be the absolutely last person to be pulling out a weak argument that virally popular things actually disappear from the Internet once they've been "taken down".

     

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    Anonymous Coward, May 12th, 2014 @ 12:51pm

    Response to: Anonymous Coward on May 12th, 2014 @ 11:46am

    Doesn't seem like goldieblox even thought this was fair use. Thanks for the journalistic post on this event. We kinda got shorted on the original story.

    well, I guess we can all now agree, NOT fair use.

     

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    jackn, May 12th, 2014 @ 1:06pm

    Re:

    Thanks for the journalistic take on the story. We didn't get that from the original article.

    Guess that seals it, NOT FAIR USE even as determined by the infringer.

    Thanks again

     

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    jackn, May 12th, 2014 @ 1:07pm

    Re: Re:

    "They did not lose because they were wrong."

    so, why did they loose?

     

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    John Fenderson (profile), May 12th, 2014 @ 1:20pm

    Re: Re: Re:

    Perhaps to avoid a lengthy, bankrupting, court battle. Don't forget how the courts work in cases like this: the one with the larger warchest wins.

     

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    jackn, May 12th, 2014 @ 1:27pm

    Re: Re: Re: Re:

    So you think they are apologizing for their infringment because they don't want to go to court?

     

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    Anonymous Coward, May 12th, 2014 @ 1:30pm

    simply changing the lyrics to a catchy song is a LYRIC change and people have to pay for that license. this article may give some insight...

    http://www.askamusiclawyer.com/archive/can-i-use-parody-songs-in-my-ad-campaign.html

     

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    jackn, May 12th, 2014 @ 1:30pm

    Hey lets turn it around for the freetards.

    Can one of you guys give an example of something that you would NOT consider fair use? I am just curious where it ends with you guys.

     

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    jackn, May 12th, 2014 @ 1:34pm

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

    "the purpose and character of your use "

    Think of that real hard for a least an hour

     

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    John Fenderson (profile), May 12th, 2014 @ 1:40pm

    Re: Re: Re: Re: Re:

    I don't know what their rationale was, as I'm not anywhere near informed enough on this case to have a reasonable opinion or speculation. However, it's entirely plausible.

     

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    jackn, May 12th, 2014 @ 1:55pm

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

    I guess you're probably good with any answer that doesn't reveal the copyright infringement or at least -- downplays it.

     

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    Anonymous Anonymous Coward, May 12th, 2014 @ 1:58pm

    Re: Re: Re: Re: Re:

    Yes, that is what some/many of us think. But as John said, we don't know their actual rationalization. Only their hairdressers know for sure.

     

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    jack, May 12th, 2014 @ 2:01pm

    Re: Re: Re: Fair Use Consideration

    another dick move by gldinblex was to infringe on the work in the first place

    Songs don't have fair use status.

     

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    jackn, May 12th, 2014 @ 2:02pm

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

    I guess you're right, the only thing we all know is this was not fair use.

     

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    John Fenderson (profile), May 12th, 2014 @ 2:09pm

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

    You're a terrible guesser.

     

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    John Fenderson (profile), May 12th, 2014 @ 2:10pm

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

    How do we know this?

     

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    jackn, May 12th, 2014 @ 2:13pm

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

    GoldieBlox also admitted that they had made a mistake in not asking the Beastie Boys for a license before using "Girls."

    GoldieBlox also agreed to publicly apologize to the Beastie Boys on their website.

    GoldieBlox also agreed to publicly promise to not make the same mistake in the future.

     

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    John Fenderson (profile), May 12th, 2014 @ 2:18pm

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

    None of which indicates whether or not it was "fair use".

     

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    jackn, May 12th, 2014 @ 2:27pm

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

    Sorry dude, your team lost this one.

    There is nothing left to argue.

     

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    John Fenderson (profile), May 12th, 2014 @ 2:30pm

    Re:

    I was going to ignore this obvious troll question, but in case there's someone new reading who might actually believe your mistaken characterizations, I'll give a quick answer. There are tons of uses that would be infringing and not fair use. For example, copying the song and distributing it without permission and not for any of the uses that the law recognizes as fair use (commentary, education, etc.).

     

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    John Fenderson (profile), May 12th, 2014 @ 2:34pm

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

    Your rage is blinding you. I am not on any "team" on this at all, and GoldieBlox' settlement statements don't address the fair use question either way. You clearly think that they do. What is your reasoning?

     

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    jackn, May 12th, 2014 @ 2:39pm

    You might have noticed that generalizations when dealing with fair use don't go over well here.

    An example is real with specific details.

     

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    jackn, May 12th, 2014 @ 2:40pm

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

    There is nothing left to argue. you lost

     

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    John Fenderson (profile), May 12th, 2014 @ 2:46pm

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

    Funny how I can "lose" when I haven't argued or made any assertions whatsoever. I sense that you're feeling less than sure of your own position.

     

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    Anonymous Coward, May 12th, 2014 @ 3:28pm

    Re: Re: Re: Fair Use Consideration

    I think that fair use is probably considered a little more often than you're giving credit. Plenty of news and comedy shows rely on fair use, and I don't think they have to spend every day fighting court cases.

    It could be argued that a serial litigator like Disney would be inclined to sue, for instance, The Colbert Report for recently using a snippet of "Let It Go" from the film Frozen, but as far as I can tell, they didn't go after Comedy Central. Maybe Disney knew they had no case in light of Fair Use, or maybe they just didn't care.

    I thought at first that you meant that a plaintiff should present all possible theoretical defenses before the defense even puts forward their justification, which would be madness in the extreme. Defendants come up with rationales for their alleged crimes/torts that no one in their right mind should be able to foresee. Twinkies, for a popular example.

     

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    jackn, May 12th, 2014 @ 3:48pm

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

    you're a terrible senser.

     

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    Mike Masnick (profile), May 12th, 2014 @ 3:56pm

    Re:

    Hey lets turn it around for the freetards.

    What do you consider to be a "freetard" anyway?

    Can one of you guys give an example of something that you would NOT consider fair use? I am just curious where it ends with you guys.

    Lots of stuff is clearly not fair use. Things that are infringing. In fact, contrary to your claims that we believe everything is fair use, we've mocked folks for claiming fair use where there is none: Hey lets turn it around for the freetards.

    Here's one example: http://www.techdirt.com/articles/20140210/11274926167/whether-not-dumb-starbucks-is-pr-stunt-joke-re al-its-parody-claims-are-pretty-questionable.shtml

    We also noted that Joel Tenenbaum's fair use argument over his downloading was ridiculous as well: https://www.techdirt.com/articles/20090727/1914495676.shtml

    So, no, contrary to your false claims, we do not argue that everything is fair use.

    This case, however, I stand by the fair use claim. It seems like a clear cut fair use argument to me.

     

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    Mike Masnick (profile), May 12th, 2014 @ 4:07pm

    Re:

    I know this is Techdirt, but I'm going to suggest that we look at the evidence anyway:


    You could make points without insulting and we could have had an interesting and informative discussion. Not sure why you decide to start with an ad hom. Weakens any belief that you're here to have an informed discussion (which is further supported by the rest of your comment, which doesn't appear to understand the legal system).

    Given all of that, it's abundantly clear that GoldieBlox realized that it had made a mistake in not getting a license in the first place. If the fair use argument were even remotely as clear as Mike thinks, why would GoldieBlox settle on such terms? Remember, it was GoldieBlox who sued first.

    It's not at all clear from the agreement that Goldieblox was giving up its fair use argument. There are many, many reasons to settle and make such an agreement. Here are just two: (1) it's cheaper/faster than dealing with a full lawsuit (even if you were to win). (2) Goldieblox realized that, no matter what the legal status, they had lost the PR battle, and thus getting out of the lawsuit quickly made sense.

    Once you do that, it's all a negotiation. And the "apologies" and admissions are just the things that are negotiated. They have little meaning in real life over how Goldieblox actually felt, especially concerning the fair use status.

    Similarly, there are many legitimate reasons for Goldieblox to have filed for declaratory judgment first. In copyright and patent cases, filing for a DJ following a demand letter is actually a fairly common move -- often done to secure a better jurisdiction. The "remember, it was Goldieblox who sued first" is not meaningful. They "sued" for a DJ, not for any money or anything. Asking for a DJ just clarifies the legal situation so you don't have it hanging over your head -- which in Goldieblox's position probably made a fair amount of sense, prior to the PR side backfiring.

    So, your "facts" have little to do with the overall question of whether it is or is not fair use. And, it would be nice to have a rational debate about that, but given your focus on ad homs, I'm not sure that's what you're actually interested in.

     

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    jackn, May 12th, 2014 @ 4:07pm

    Re: Re:

    Thanks for the reply. I was quite shocked by your article. Not the content, the conflict, or the result, just your words.

    Actually, it looks like you removed the most offending line from your article. I am glad its gone, I was thinking that this place might become the FOX NEWs of IP blogs.

    But it does seem that you think PARODY = FAIR USE. I don't agree with that assessment.

    What is the key part of this situation that makes you want to say fair use, the parody? is there something I am missing.

     

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    Togashi (profile), May 12th, 2014 @ 4:08pm

    Re: Re: Re:

    Weird Al Yankovic didn't write the original of a lot of his music. He directly profits off sales of his parodies. He doesn't pay a dime to any of the original artists. He gets their permission because he's a good guy, but legally he does not have to. His parodies don't even typically make any sort of point. Please explain what you think makes his and Goldieblox's legal sitations different.

     

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  97.  
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    JMT (profile), May 12th, 2014 @ 4:16pm

    Re:

    "IMO, just being parody is not enough."

    You're right, just being a parody isn't enough. But you seem to be completely ignoring all the other factors that are considered in a fair use determination. You're fixating on the commercial aspect, despite court rulings (including from the Supreme Court) that concluded that commercial works can be fair use. Not only is the GoldieBlox song the textbook definition of parody, it was intended to be educational in nature, has completely different lyrics (transformative use) and has no negative effect on the Beastie Boys work (it can even be argued it's had a positive effect).

    "Fair use can include commercial uses, but I don't think fair use is applicable here."

    And you've done an extraordinarily piss-poor job of explaining why you think that's the case. You just keep claiming it's "obvious" or "an open and shut case", but haven't presented anything resembling a substantive argument. Instead of parroting your earlier claims, why don't you explain why all of the other factors in their favor shouldn't count?

     

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    JMT (profile), May 12th, 2014 @ 4:25pm

    Re: Re: Re:

    "But it does seem that you think PARODY = FAIR USE."

    Only if you haven't actually read what TD have written on this topic. Their reasoning has never been that simplistic or incomplete.

    "What is the key part of this situation that makes you want to say fair use, the parody?"

    Clear parody, educational message, transformative use, and no effect on the copyrighted work.

    "is there something I am missing."

    Clearly...

     

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    Anonymous Anonymous Coward, May 12th, 2014 @ 4:25pm

    Re: Re: Re: Re: Fair Use Consideration

    IANAL, but I do read widely. My understanding is that if an infringement case goes to trial, they do not get to the fair use portion of consideration until sometime down the road, at a fair expense. Other times, like in this case, the defendant folds, at times for financial reasons, not whether they feel they are wrong and might very well be vindicated in a trial they cannot afford. In that scenario, fair use never gets considered, yet may very well be the correct analysis. How many of those happen? With secret settlements (why are they allowed to be secret?) we may never know.

     

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    Mike Masnick (profile), May 12th, 2014 @ 4:32pm

    Re: Re: Re:

    Actually, it looks like you removed the most offending line from your article. I am glad its gone, I was thinking that this place might become the FOX NEWs of IP blogs.


    I haven't made any changes. Not sure what you're talking about?

     

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    jack, May 12th, 2014 @ 4:37pm

    Re: Re: Re: Re:

    Actually, I seem to be in the right, so I guess it is "you" guys that are missing something. Actually, I think 'yall' got a little extra!

    "Clear parody,...."

    Everyone has agreed, that is not a valid argument.

    ", educational message, "

    ya, right..

    " transformative use,"
    OK, whatever

    "and no effect on the copyrighted work."

    that is wrong.

    Please, do go on, at length....

     

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    Pseudonym, May 12th, 2014 @ 4:39pm

    Re:

    I agree broadly with Michael's take on the whole thing, and I am no fan of the Beastie Boys, but I have to disagree with you. If they weren't important, people wouldn't be using their music as cultural references.

    Nor do they don't come off as bullies. They come off as honouring the memory of a nice dead guy.

    Goldieblox were (IMO) legally in the right, but they lost the PR battle.

     

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    Anonymous Coward, May 12th, 2014 @ 4:40pm

    Re: Re: Re: Re:

    your correct. Its still there. Its not as powerful as my first reading of it.

    its just this

    "a clear fair use,"

    that is objectionable. To me, it is "Clearly, not a fair use."

     

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    Anonymous, May 12th, 2014 @ 4:55pm

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

    Think real hard of jackn's mother and sister getting it on for an hour.

     

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    Zonker, May 12th, 2014 @ 4:57pm

    Re: Re:

    What Goldieblox did is absolutely fair. They wrote a parody (every word different from the Beastie Boys song but one: "Girls") turning a chauvinistic song into an empowering one. That was Goldieblox's creative work which they have a right to use as they see fit. The Beastie Boys song would not have been appropriate for the purpose Goldieblox envisioned.

    Don't let emotions over a deceased band members wishes *for their own music* trump the legal rights of others under copyright law. Commercial use is not dispositive of the fair use rights of parody as decided in the 2 Live Crew "Pretty Woman" case. If Roy Orbison's wishes for control over how "Pretty Woman" could be not be used against 2 Live Crew's right to make a parody for profit then neither does the Beastie Boys. In fact, the tune for "Girls" was lifted from the Isley Brothers' "Shout" so the Goldieblox parody could just as well have been a parody of that song without the Beastie Boys having anything to do with it.

    By your reasoning, Weird Al Yankovick could not have make money selling his "Amish Paradise" parody of Coolio's "Gangsta's Paradise". Originally done without permission and against Coolio's wishes before coming to his senses and admitting it was fair use and there was nothing he could do about it.

     

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    jackn, May 12th, 2014 @ 5:03pm

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

    Its techdirt! the real law.

     

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    jackn, May 12th, 2014 @ 5:20pm

    Re: Re:

    "It's not at all clear from the agreement that Goldieblox was giving up its fair use argument. "

    To me, it is the clearest message in the wording, without actually mentioning fair use.

    "There are many, many reasons to settle and make such an agreement. Here are just "....

    I guess I see where you're going, they may have opted for the easy way out at this point. and they got the license.

    "So, your "facts" have little to do with the overall question of whether it is or is not fair use. And, it would be nice to have a rational debate about that, but given your focus on ad homs, I'm not sure that's what you're actually interested in."

    Its techdirt again! circular logic for everyone

     

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    Zonker, May 12th, 2014 @ 5:27pm

    Re: Re: Re: Re: Fair Use Consideration

    You already know the answer to that, you just want to conflate the issue to make it seem like your argument was sensible when your actually revealing just how weak your argument is.

    Parodies of songs have fair use status, yes. That means you can make your own piece of writing, music, etc., that imitates the style of someone or something else in an amusing way. You can use your own parody in your own commercials, but you would have to get Goldieblox's permission to use theirs. You don't need to parody the song if your use falls under any of the other definitions of fair use, such as commentary and criticism. No, you can't just use the actual Beastie Boys recordings in your commercial without permission as that does not meet the requirements for fair use.

     

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    Greevar (profile), May 12th, 2014 @ 5:50pm

    Re: Re: Re:

    Prove it or shut the hell up! Cite the exact wording in the copyright act that proves this is invariably infringement.

     

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    Greevar (profile), May 12th, 2014 @ 6:19pm

    Re: Re: Re: Not fair use

    Nor is commercial use sufficient grounds to negate fair use.

     

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    Zonker, May 12th, 2014 @ 6:26pm

    Re:

    1. The agreement was actually that Goldieblox donate 1% of their revenue to the charity *until they reach $1,000,000*. It may take them a while to make the $100,000,000 necessary to reach that million dollar total.

    2. Stating as a settlement condition that Goldieblox made a mistake does not change the legal grounds they had in their favor. At most it is waiving any valid legal claims Goldieblox may have had.

    3-4. Again such apologies and promises were not a legal requirement or ruling, it was a negotiated settlement. It appears that this was preferable to any PR flack or legal costs that Goldieblox or the Beastie Boys would face by continuing the fight.

    5. This is actually most problematic for the Beastie Boys. Why? Because by licensing the commercial use of "Girls" to Goldieblox for even that one week actually violates the wishes of their deceased band member that their music never be licensed for use in commercials. Yes, the Beastie Boys agreed to violate their "no commercial use" policy on their music by allowing Goldieblox to license it, however briefly and in retrospect.

    I understand how much hatred people have developed for commercial advertisements (unless it's halftime for the "Big Game" on TV) and how this must be coloring the perception of right vs. wrong here, but that does not by itself make something not fair use. You don't have to like advertisements to support fair use rights, but you should support fair use rights for all to preserve your own.

     

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    JMT (profile), May 12th, 2014 @ 6:33pm

    Re: Re: Re: Re: Re:

    So they lyrics were not intended to educate? Have you even listened to the song? I suspect not...

    You obviously have no idea what transformative means in this context. Every single word in the lyrics was changed bar one. The message of the lyrics is the polar opposite of the original lyrical message. Please explain how that's not transformative.

    And then explain how exactly this affects the original work.

    I accused you above of making no actual argument at all, just repeating "I'm right, you're wrong". I see you're sticking with this tactic. Can't you do any better?

     

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    Greevar (profile), May 12th, 2014 @ 6:37pm

    Re: Re: Re: Re: Re:

    That is 100%, totally, and completely your, biased, opinion. Just because you have a gut feeling that it isn't fair use, it does not make it so. Your opinion does not equate to what the law says it is.

     

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    BeeAitch (profile), May 12th, 2014 @ 7:20pm

    Re: Re: Re: Re:

    *crickets*

     

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    Karl (profile), May 12th, 2014 @ 9:28pm

    Re: Re: Re: Re:

    if you think this is fair use and you support copyright in any fashion.

    Fair use has been part of copyright law back when it was still common law. Arguing against fair use is arguing against copyright.

    And, yes, I also believe it was fair use. Goldieblox re-recorded the whole thing, and created different lyrics, in what was obviously a parody.

    Ironically, the only thing that the Beasties could have sued over was the composition... and that was "stolen" from the Isley Brothers' "Shout." (Rick Rubin, the producer of that song, has outright stated as much.)

     

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

  116.  
    icon
    Karl (profile), May 12th, 2014 @ 9:34pm

    Re: Re: Re: Re: Fair Use Consideration

    Songs don't have fair use status.

    Dude, what the fuck does that even mean? Of course they do. The 2 Live Crew case was a song, you know.

    I know I shouldn't be responding to you, but seriously - you have absolutely no idea what you're talking about.

     

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  117.  
    identicon
    athe, May 12th, 2014 @ 10:43pm

    Re: Re:

    You people keep regurgitating this line that "IT'S NOT FAIR USE!!!" without any reasoned analysis. Meanwhile, those saying that it could be fair use have laid out their reasons.

    If you want to be taken seriously, perhaps you should provide some justification for your statements...

     

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

  118.  
    identicon
    athe, May 12th, 2014 @ 10:49pm

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

    Or, since you seem to know what it is, lay out your well reasoned arguments.

    Or, more likely, resort to ad-homs...

     

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

  119.  
    identicon
    Anonymous Coward, May 13th, 2014 @ 2:31am

    Re: Re: Re:

    "It's not at all clear from the agreement that Goldieblox was giving up its fair use argument. "

    To me, it is the clearest message in the wording, without actually mentioning fair use.

    Do you realise that you have failed to clarify this conclusion to anyone? I can see that it's obvious to you, but would you mind explaining it to the rest of us?

     

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

  120.  
    identicon
    jackn, May 13th, 2014 @ 4:59am

    Re: Re: Re: Re:

    . In the settlement agreement, GoldieBlox agreed to pay $1,000,000 to charity for a license from the Beastie Boys to use "Girls" for the period of time that they had used it.

    2. GoldieBlox also admitted that they had made a mistake in not asking the Beastie Boys for a license before using "Girls."

    3. GoldieBlox also agreed to publicly apologize to the Beastie Boys on their website.

    4. GoldieBlox also agreed to publicly promise to not make the same mistake in the future.

    5. As per the settlement agreement, the Beastie Boys agreed to do nothing other than grant the license to GoldieBlox.


    now, I believe it is you that should stfu

     

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  121.  
    identicon
    Anonymous Coward, May 13th, 2014 @ 5:00am

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

    Nice double reverse ad hom

     

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

  122.  
    icon
    Mike Masnick (profile), May 13th, 2014 @ 5:27am

    Re: Re: Re: Re: Re:

    You just repeated the argument where we already explained why it was wrong here: http://www.techdirt.com/articles/20140511/06592527192/goldieblox-agreed-to-pay-charity-1-million-usi ng-beastie-boys-girls.shtml#c1304

    Do you have anything else?

     

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

  123.  
    identicon
    Pragmatic, May 13th, 2014 @ 6:02am

    Re: Re: Re: Re:

    Ironically, the only thing that the Beasties could have sued over was the composition... and that was "stolen" from the Isley Brothers' "Shout." (Rick Rubin, the producer of that song, has outright stated as much.)


    Care to comment on that, or are you too busy ignoring the reality-based community?

     

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

  124.  
    identicon
    Pragmatic, May 13th, 2014 @ 6:04am

    Re: Re:

    Bob, the Beasties were guilty of taking from the Isley Brothers. Where are your comments on that?

     

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

  125.  
    identicon
    Pragmatic, May 13th, 2014 @ 6:07am

    Re: Re: Re: Re: Fair Use Consideration

    You should actually be asking the Isley Brothers as well.

     

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

  126.  
    identicon
    Pragmatic, May 13th, 2014 @ 6:09am

    Re: Re: Re: Re: Re:

    Explain Weird Al Yankovich. He asks before using but doesn't require a license or pay license fees, yet he makes money off other people's work.

     

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

  127.  
    identicon
    Pragmatic, May 13th, 2014 @ 6:12am

    Re:

     

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

  128.  
    identicon
    Anonymous Coward, May 13th, 2014 @ 7:59am

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

    You keep referring to that poorly written article as evidence of something. What is your point - that this is clearly fair use? Sorry, but no.

     

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

  129.  
    icon
    Greevar (profile), May 13th, 2014 @ 3:39pm

    Re: Re: Re: Re: Re:

    You have completely and totally failed to prove anything. As I said, cite the wording in the COPYRIGHT ACT that indicates this is clear infringement since that is the law that is applicable to the issue and not your gut feeling. I did not say give me your baseless speculation.

    1. That was their choice. It does not prove infringement.

    2. Their admission is not proof. There are legally defined criteria to test for fair use.

    3. See number 1.

    4. See number 3.

    5. If this had actually gone to court and a judgement of fair use was found, GB would never have been under any obligation to ask for a license.

    I say again, find the text in the law that proves this to be infringement. I don't care about your opinions and baseless assumption.

     

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

  130.  
    identicon
    Anonymous Coward, May 13th, 2014 @ 8:38pm

    average_joe just hates it when due process is enforced.

     

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

  131.  
    icon
    LAB (profile), May 14th, 2014 @ 3:15pm

    This might very well have been fair use. How this "seems like an unfortunate result," doesn't make that much sense to me. What is the purpose of advertisement? To convince customers to buy your product. Was this ad doing that? Quite the opposite. I doesn't matter if it was fair use or not. The ad they spent $$ on was doing the opposite of its intended purpose. The company wants to further science ed for girls, and what are they doing instead of paying the Beasties? Donating $$ for science ed for girls. In what world is this a bad outcome? Most suits settle regardless if you are "right" or "wrong"

     

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

  132.  
    icon
    JMT (profile), May 14th, 2014 @ 6:27pm

    Re:

    "What is the purpose of advertisement? To convince customers to buy your product. Was this ad doing that? Quite the opposite. I doesn't matter if it was fair use or not. The ad they spent $$ on was doing the opposite of its intended purpose."

    Can you explain why you think that? I can't see how this campaign could have a negative affect on their sales. The people who were getting so pissy about it are not exactly the products' target market.

     

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

  133.  
    identicon
    Anonymous Coward, May 14th, 2014 @ 6:29pm

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

    You keep referring to that poorly written article as evidence of something. What is your point - that this is clearly fair use? Sorry, but no.

     

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

  134.  
    icon
    LAB (profile), May 15th, 2014 @ 7:13am

    "The people who were getting so pissy about it are not exactly the products' target market."

    It was not the ad itself more the reaction to it. Adults buy toys for children. So the target market is truly adults. The company uses a Beastie boys song but does not attempt to license it(I'm not saying they legally need to presuming it's fair use). The they sue the Beasties first. Then the Beasties say they are all for what GoldiBlox stands for but one of the dead members has, in his will, not to use their songs for commercials. Public perception of the company? They stole the song, didn't try to get permission to use it, and would ignore the wishes of a dead group member all for a commercial for kids toys.......terrible PR and not really the image you want for a toy maker. Tag line ...Just another big bad company that does what it wants......

     

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

  135.  
    icon
    JMT (profile), May 15th, 2014 @ 1:41pm

    Re:

    "The they sue the Beasties first."

    As has been explained many, many times, they sued for declaratory judgment, not money. You're trying very hard to paint an inaccurate picture. Under threat of possible legal action, they simply asked a court to decide if they were right or wrong.

    "They stole the song..."

    Again with the simplistic and inaccurate claims. It's bad enough when you claim infringement is theft, but to make the same claim about parody just makes you look silly and ignorant of the law.

    "...terrible PR and not really the image you want for a toy maker."

    As an engineer with two young daughters, I thought the marketing approach they took was fantastic. Their message is a million times more useful to society than the message from the original song. I'd rather my girls be influenced by Goldieblox than any musicians getting a bit precious about a 26 year old song.

    "Just another big bad company that does what it wants..."

    You think these guys are "big" and "bad"? I don't think you have any idea who you're talking about.

     

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  136.  
    icon
    LAB (profile), May 15th, 2014 @ 5:31pm

    The they sue the Beasties first."

    "As has been explained many, many times, they sued for declaratory judgment"

    Who took legal action first? Lawyers must be hired, lawyer costs money. I am well aware of what a declaratory judgment is, but is the public? No

    "They stole the song..."

    Listen, I know we disagree a lot but please read what I wrote. I didn't say I thought this, I said that was public perception. you asked me to explain how the ad campaign could hurt them that's all I did.

    "It's bad enough when you claim infringement is theft"

    Theft: the wrongful taking and carrying away of the personal goods or property of another.

    Ask yourself these questions. Is it against the law? Does it belong to me? Does it belong to someone else? Did they give it to me as a gift? Did I take it? You can call it whatever you want. All infringement is not theft. Some is. Piracy would seem to satisfy the above definition. Some people said they stole the beastie boys song. That is not my view.

    Did you not see where I said they didn't need permission if it was fair use? This is what I wrote:

    "This might very well have been fair uses."

    "I thought the marketing approach they took was fantastic. Their message is a million times more useful to society than the message from the original song."

    The Beastie boys agreed with you and so do I, that's why I said I didn't see why the outcome of the case was all that bad. Instead of the group getting the money, its going to charity. Why is this an unfortunate outcome as the author stated?

    "Just another big bad company that does what it wants..."

    Again, public perception. I don't think this. You asked why I thought the ad campaign could hurt sales and I told you how some people could see it. What is the point of advertising? To get people to buy your product and to make the company look good. When they started getting bad press for using a song, it made them look like the bad company and made the Beastie Boys into two guys trying to honor the wishes of their dead band member, who died from cancer, and not some guys just trying to get paid.(public perception).
    That is how it could have a negative effect on sales

     

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

  137.  
    identicon
    Anonymous Coward, May 16th, 2014 @ 3:38am

    Re: Re: Re: Re: Re:

    No use in replying to 'jackn,' as they are entirely deluded. A loss is a win in their book. That, or they are using the 'lalalalala I can't hear you' defense.

     

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

  138.  
    icon
    JMT (profile), May 16th, 2014 @ 7:11pm

    Re:

    "Who took legal action first? Lawyers must be hired, lawyer costs money."

    So what? It means practically nothing. The only reason you keep bringing it up is to make them look bad.

    "I am well aware of what a declaratory judgment is, but is the public? No"

    Which is exactly why people like you keep screaming "They sued first!", instead of pointing out that it's a perfectly common and sensible legal strategy. The negative portrayal works for you, because you don't like what they did.

    "Some people said they stole the beastie boys song. That is not my view."

    You're not very convincing on that point, but even that's not relevant when the fair use argument is so strong. If it's fair use it's not even infringement, let alone 'theft'.

    "Why is this an unfortunate outcome as the author stated?"

    A nice as it is that some some money will go to charity, it's being done under very unfortunate circumstances. Fair use is important to the growth and dissemination of art and culture, so having a strong legal ruling that strengthens the protection of those engaging in fair use and dissuades copyright owners from attacking them would be a much better result for society in the long run.

     

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

  139.  
    icon
    LAB (profile), May 17th, 2014 @ 1:54pm

    "The only reason you keep bringing it up is to make them look bad."


    They didn't try to license the song first. If they had, this would have been avoided. They would have learned of the dead group member's will stating "no commercial use." They wouldn't have had to spend money on lawyers to file for Declaratory Judgment. What is fair about forcing the Beastie Boys to fight a legal battle to honor the wishes of their dead group member. They do look bad. Sorry many people thought, and still think, the wishes of a dead man are important.

    "Which is exactly why people like you keep screaming "They sued first!", instead of pointing out that it's a perfectly common and sensible legal strategy."

    People like me.... screaming....sure...You file for declaratory judgment when you know you are going to get sued. That is what a lawyer advises when asked "what should we do? we are pretty sure we are going to get sued." If they had even communicated with the group the whole nonsense would have been avoided.

    "You're not very convincing on that point."

    Sorry you feel what I right is not indicative of what I believe.

    "so having a strong legal ruling that strengthens the protection of those engaging in fair use and dissuades copyright owners from attacking them would be a much better result for society in the long run."

    You would rather they have a long protracted legal action instead of a settlement and money going to charity? Just to prove it's fair use? Quite telling. I guess this IS an unfortunate outcome. The Beastie boys liked the use of the song. They continued legal action to honor MCA's will. In almost every infringement case the defense of fair use is used. The law is very clear on its definition. There is no need to strengthen it. It is to be used on a case by case basis. The Beastie Boys would have sued regardless. And if I was in a group, and one of us died, and it was in his will not to use our music in commercials....I would sue too. Even if we lost and it was fair use, I would have been respectful of a passed group member's wishes. I suppose if the roles were reversed and you were in the group, you would say" I know what his will says but we shouldn't fight it, it's fair use.....

     

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

  140.  
    icon
    The Wanderer (profile), Sep 25th, 2014 @ 5:44am

    Re: Re: Re: Re: Fair Use Consideration

    Of course it had a fair-use status; either it was fair use, or it wasn't. Therefore, it had either the status of being fair use, or the status of not being fair use - either of which qualifies as a "fair-use status".

     

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

  141.  
    icon
    The Wanderer (profile), Sep 25th, 2014 @ 5:48am

    Re:

    This could almost have been a reasonable comment, if it hadn't been for the "keep digging that hole" paragraph. As it is, you get a report vote.

     

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

  142.  
    icon
    The Wanderer (profile), Sep 25th, 2014 @ 5:52am

    Re: Re: Re: Re: Re:

    Actually, people have agreed that "clear parody" is not a sufficient argument - not that it's not a valid one. It's not enough by itself, but it can be an important component of a larger, multi-part argument.

     

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


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