from the fair-use-gets-pricey dept
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.