By: Scott Hervey
From all appearances, it would have been a fight worth watching. In one corner was the Beastie Boys, the Brooklyn bread, 80s powerhouse rap group; they aggressively enforce their intellectual property rights and have never allowed their music to be used in advertisements. (This commitment was so important to the group that in his will, Adam “MCA” Yauch stated that "in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.") In the other corner was GoldieBlox, an upstart toy company, founded by a Stanford-educated product designer, with a goal to disrupt the current vision of “toys for girls” and inspire the next generation of female engineers.
In its marketing campaign, GoldieBlox created a series of promotional videos set to music featuring girls engaging in "nontraditional" play activity. One such ad was set to a new version of the Beastie Boy’s song, "Girls", in which a group of young girls used a collection of traditional “girl” toys and other household items to create a huge Rube Goldberg machine. The surviving members of the Beastie Boys did not approve of this use of their song and sent GoldieBlox a cease and desist letter, insisting that the revised version of “Girls” was not a parody and that GoldieBlox was infringing their copyright. GoldieBlox took an aggressive legal maneuver by filing a lawsuit for declaratory relief, requesting the court to find that its video and revised version of “Girls” is a parody and protected by the Fair Use doctrine.
Just as fast as the fight escalated, it ended. The Beastie Boys wrote an open letter to GoldieBlox stating that they were impressed by the creativity and message behind the ad, that they support empowering young girls, but the band made a conscious decision not to permit its music to be used in ads. The band continued, “When we tried to simply ask how and why our song ‘Girls’ had been used in your ad without our permission, YOU sued US.” GoldieBlox then wrote a open letter in reply, removed the video and, standing by its assertion that its video and version of "Girls" is a parody protected by fair use, offered to dismiss the lawsuit.
Fair use is probably the most cited limitation on the rights of copyright owners. Fair use of a copyrighted work includes using the material for criticism, comment, news reporting, teaching, scholarship or research. Under 17 USC § 107 whether the use or copying of a work constitutes fair use is determined by the following four factors:
- The nature of the use (commercial or nonprofit);
- The nature of the work;
- The amount and substantiality of the portions taken from the copyrighted work; and
- The effect on the potential market for the copyrighted work, as well as other factors under the rule of reason analysis.
Had the GoldieBlox lawsuit gone forward, the issue would have been whether the video was a parody or a satire. There is a distinction in the difference. A parody is well accepted as fair use. However, the issue of whether a work of satire is immune from claims of copyright infringement has not yet been fully established.
The Supreme Court case, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) established that parodies fall under "fair use" and thus are excluded from the stable of exclusive rights granted to a copyright holder. Thus, the crux of any parody defense is whether the work in question can be considered a parody.
In the Ninth Circuit, there are two seminal cases that address whether works similar to the GoldieBlox video fit within the definition of a parody. The two cases are Fisher v. Dees, 794 F. 2d 432 (9th Cir. 1986) and Dr. Seuss Enterprises, LP v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996). In Fisher, Marvin Fisher and Janet Siegel, the composers and owners of the copyright to the 1950 standard, “When Sunny Gets Blue,” sued disc jockey Rick Dees over its use in Dees’s work entitled “When Sunny Sniffs Glue.” Responding to plaintiffs’ claim of copyright infringement, Dees asserted that “When Sunny Sniffs Glue” was a parody and the copying of the original song constituted fair use. In arguing that fair use was not applicable, the plaintiffs asserted that Dees’s song, although it borrowed from the original work, was not a true parody because it was not "directed" at the original. This distinction was relevant because previous case law held that a humorous or satiric work deserves protection under the fair use doctrine only if the copied work is at least partly the target of the work in question. The Fisher court reiterated this requirement, but found Dees’s version intended to poke fun at the plaintiffs’ song and at the singer’s (Johnny Mathis) singular vocal range. The court’s holding was relied on by the Supreme Court in Campbell when it stated "for the purposes of copyright law, the nub of the definitions and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work." (Campbell, supra, 510 at 581).
The Supreme Court continued to state that if "the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from the another’s work diminishes accordingly (if it does not vanish) and other factors like the extent of its commerciality loom larger." Accordingly, to be considered a parody, the work must, to some degree, comment on or criticize the original.
In Dr. Seuss, the plaintiff brought, among other claims, a claim for copyright infringement against the author of an illustrated book entitled “The Cat Not In The Hat! A Parody by Dr. Juice.” This book was supposed to supply a "fresh new look" at the O.J. Simpson double murder trial. The book’s rhymes, illustrations, and packaging was designed to mimic the distinctive style of the family of works created by the author better known as Dr. Seuss. In considering whether to grant the plaintiff’s motion for a preliminary injunction, the court considered whether the plaintiff was able to establish a probability of success on the merits of its copyright claim despite the defendants’ claim of fair use.
The court analyzed the common elements in the plaintiff’s work and the defendants’ work and found that the plaintiff produced evidence showing that protected elements of its copyrighted works were incorporated into the defendants’ book. Next the court considered the defendants’ contention that, even as to the elements that were incorporated into their book, their taking was excused under the fair use doctrine. The defendants did not argue that their book was a parody.
Rather, they argued that all satirical uses are entitled to consideration under the fair use doctrine, not just parodies. In considering the defendants’ argument, the court noted that the majority opinion in Campbell was silent on this issue. Despite a lack of guidance from the Supreme Court, the Central District applied the law as established by the Ninth Circuit and found that the fair use defense does not apply to satires but rather applies only to true parodies. (Id. at 1567).
With respect to GoldieBlox’s version of “Girls”, were the lawsuit to move forward, the fundamental question would be where the video falls on the parody/satire spectrum. Most of the legal coverage on this case has been in support of GoldieBlox’s position. Although the GoldieBlox version of “Girls” is a new “girl power anthem”, it clearly takes aim at the denigrating depiction of girls in the original Beastie Boys version. A side by side comparison of the lyrics is below.
Beastie Boys Lyrics for Girls
GoldieBlox Lyrics for Girls
Girls, all I really want is girls
And in the morning it’s girls
Cause in the evening it’s girls
I like the way that they walk
And it’s chill to hear them talk
And I can always make them smile
From White Castle to the Nile
Back in the day
There was this girl around the way
She liked my home-piece M.C.A.
He said he would not give her play
I asked him, “Please?” he said, “You may.”
Her pants were tight and that’s ok
If she would dance I would D.J.
We took a walk down to the bay
I hope she’ll say, “Hey me and you should hit
I asked her out she said, “No way!”
I should have probably guessed they’re gay
So I broke North with no delay
I heard she moved real far away
That was two years ago this May
I seen her just the other day
Jockin’ Mike D. to my dismay
Girls – to do the dishes
Girls – to clean up my room
Girls – to do the laundry
Girls – and in the bathroom
Girls, that’s all I really want is girls
Two at a time I want girls
With new wave hairdos I want girls
I ought to whip out my girls, girls, girls, girls,
Girls. You think you know what we want, girls
Pink and pretty it’s girls.
Just like the 50’s it’s girls.
You like to buy us pink toys
And everything else is for boys
And you can always get us dolls
And we’ll grow up like them… false.
It’s time to change.
We deserve to see a range.
‘Cause all our toys look just the same
And we would like to use our brains.
We are all more than princess maids.
Girls to build the spaceship,
Girls to code the new app,
Girls to grow up knowing
That they can engineer that.
Girls. That’s all we really need is Girls.
To bring us up to speed it’s Girls.
Our opportunity is Girls.
Don’t underestimate Girls.