from the the-inevitable-end dept
Dear Adam and Mike,A very strong argument can be made that the company should have communicated directly with the Beastie Boys and their lawyers prior to filing for declaratory judgment. But what many people who are commenting on this, who have little to no understanding of copyright law, don't realize, is that filing for a declaratory judgment when threatened is both very standard and quite sensible. As the copyright maximalists are fond of reminding us, you often can't know for sure if something is fair use until a judge says so. Frankly, it shouldn't be this way. Fair use shouldn't require a court to decide, but copyright maximalists have made it so. And, given that, if someone threatens you, the best way to make it clear that it's fair use is to quickly get a judge to weigh in. That's exactly what Goldieblox did, and it's pretty standard in cases where someone is accused of copyright infringement.
We don’t want to fight with you. We love you and we are actually huge fans.
When we made our parody version of your song, ‘Girls’, we did it with the best of intentions. We wanted to take a song we weren’t too proud of, and transform it into a powerful anthem for girls. Over the past week, parents have sent us pictures and videos of their kids singing the new lyrics with pride, building their own Rube Goldberg machines in their living rooms and declaring an interest in engineering. It’s been incredible to watch.
Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves. We did so sincerely hoping we could come to a peaceful settlement with you.
We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising. Although we believe our parody video falls under fair use, we would like to respect his wishes and yours.
Since actions speak louder than words, we have already removed the song from our video. In addition, we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team.
We don’t want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.
Debbie + Team GoldieBlox
As we've noted in multiple posts, there's also a very strong argument that this is absolutely fair use. However, that doesn't mean that Goldieblox needs to continue the fight. Pulling the video and the lawsuit may remove what would have been a very interesting copyright/fair use case, but as we ourselves have pointed out many times, just because you can go legal, it doesn't always make sense to do so. The question of whether or not the Beastie Boys want their music in ads may be relevant to whether or not the original effort was "respectful," but is not an issue in the fair use equation.
Which brings me to one final point on this. Many people have been arguing that "respect" is all about "permission." This is a very dangerous view. As we've pointed out over and over again, permission-based culture is no culture at all. Creating art is about breaking barriers, building on those who came before and doing it in new and unique ways. The Beastie Boys themselves clearly recognized and did this themselves many, many times. Often, getting permission is impossible, and focusing on needing permission crushes fair use in dangerous ways. A healthy fair use doctrine has resulted in tremendous art, culture and innovation. Demanding permission in all cases would be stifling. It also leads to a thicket problem, that tends to benefit the gatekeepers of culture, rather than the actual creators and artists, many of whom rely strongly on fair use themselves.
As Mathew Ingram notes, fair use is something worth fighting for, and while Goldieblox made the reasonable decision not to continue this fight, we should be extremely wary of attempts to shut down and close off fair use for the sake of both our culture and innovation.