On Friday, we wrote about the declaratory judgment lawsuit that toy company GoldieBlox filed
against Universal Music, the Beastie Boys and a few related parties, arguing that their commercial, which parodies the BB's song "Girls" is fair use and not copyright infringement, following what they claimed was a threat from the band's lawyers. Over the weekend, some in the press started quoting a representative of the Beastie Boys who said no such threat ever happened
A representative for the Beastie Boys explained: "There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys."
Today, the Beastie Boys, clearly in damage control mode, sent an open letter to the company
Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.
We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.
As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.
When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.
Now, it is true that some in the press have mistakenly stated that the Beastie Boys sued GoldieBlox, and that's clearly not the case. GoldieBlox filed for declaratory judgment, which is a fairly standard move after someone claims that you violated their rights. It's not a lawsuit seeking money -- just to declare that the use is fair use. While the Beastie Boys say they made no threat or demand, the lawsuit notes that their letter (which still has not been revealed in full) made a direct claim that the video was copyright infringement, and also that this was a "big problem" that has a "very significant impact."
Many people in our comments and elsewhere who have defended the Beastie Boys have pointed out that the band does not allow its music to be used in advertisements. And, in fact, that in Adam Yauch's will, it explicitly stated
that none of their music was ever to be used in advertising. And, from the Beastie Boys' open letter, it appears that was their main concern.
But, here's the thing: as principled as Yauch was about this, and as admirable as it may be for him and the band to not want their music appearing in advertisements that does not matter under the law
the use is considered fair use, then it can be used. Period. There is no clause in fair use law that says "except if someone's will says otherwise." The very point of fair use is that you don't need permission and you don't need a license
So the fact that they don't like their work in advertisements is entirely meaningless to the legal question. In fact, if anything it may harm the claim that it's infringement
. I've spoken to a bunch of copyright lawyers about this, and almost all of them agree that this is likely fair use (with some arguing that it's a totally clear-cut case). Some have argued that because it's an advertisement for a company that precludes any possibility of fair use, but that's absolutely not true. Plenty of commercial efforts have been considered fair use, and, in fact, many of the folks who rely the most on fair use are large media companies who are using things in a commercial context. Furthermore, the Supreme Court explicitly stated in Campbell v. Acuff-Rose Music, Inc.
that commercial use can be fair use
, noting that if commercial use made things automatic infringement, it would destroy fair use:
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." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases...
And later, in overturning the appeals court ruling that went the other way:
It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use.
Both of those clearly apply here as well. Some have pointed out that GoldieBlox didn't "declare" this video a parody. But, once again, in the very same case, the Supreme Court notes you don't need to do that:
We note in passing that 2 Live Crew need not label their whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).
That's not to say the commercial nature of this venture won't play into any analysis. It is certainly one factor in many. However, as Ken White points out, if this weren't a commercial, there's absolutely no doubt
that it's fair use, as it hits on pretty much every other factor. Furthermore, the very fact that the Beastie Boys refuse to allow their songs in ads actually works against them because
they can't legitimately argue that they lost money because of this, since they've outright declared that they won't license music for such things. So no money could be lost.
And, in fact, this is exactly
what fair use is for: to enable people to use music, without permission, in situations that create a very different kind of work where the copyright holder would almost certainly not