Friday, September 22, 2023

Beastie Girls cont’d

The Beastie Boys have penned an open letter addressing the recent GoldieBlox viral video brouhaha. In it, they portray themselves less as copyright bullies than principled artists. “As creative as it is,” they write, “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.”

The difficulty with this reasoning is that it places greater value on certain types of commercial speech (i.e., rap music) over others (i.e., advertising for girls’ science toys). As much as I might deride culture industry schlock as much as the next armchair Marxist, I don’t think the Beastie Boys envisioned a scenario like the GoldieBlox video when they decided to take the moral positioning they have. It’s one thing to just blatantly sample, appropriate (or even outright license) music to sell a product. I think this is more what the Beastie Boys had in mind (I can imagine, say, using, as is, the song “No Sleep Till Brooklyn” to advertise for Brooklyn Nets basketball would rub the wrong way). It’s quite another to creatively alter (into a parody, no less) music that sends a message at the same time that it sells what would seem initially a positive, empowering product for children.

Regarding fair use and commerciality, again, I reference Campbell v. Acuff-Rose, Inc.: “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in [the 1976 Copyright Act’s] preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” In other words, there is no clean separation between creative and commercial expression. As much as we may admire the Beastie Boys’s stance, they, and all of us, would do well to think about the complexity of such umbrella terms as “advertising” and “commercial” in today’s always-online climate.

If anything, the Beastie’s balking makes for an even better case of fair use. The fair use doctrine is intended precisely for those instances where primary copyright holders would suppress speech they deem offensive (given their note, it’s doubtful the Beastie Boys would ever agree to license their music for advertising purposes other than their own). GoldieBlox would have no choice but to either a) use the song without consent, but attempt a fair use of it or b) abandon the project. I, for one, am glad they chose the former.

Let’s hope that in this case, the Boys make an exception to their anti-advertising golden rule. They’d be wise to.


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Comments: 7

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  • Nate,
    Firstly, kudos to your parents for giving you such a great name. I agree with almost everything you’ve said, although I do think it’s unfortunate that the Boys are being portrayed (not necessarily by you, but by the media in general) as such villains in this debacle. The toymaker’s use is probably fair as parody, but it certainly tests the boundaries of that doctrine. And the Boys do have a right to protect their work from commercial exploitation. The fact that the original lyrics are so blatantly sexist and this commercial in a sense “transforms” it to promote gender equality definitely hurts their case, though. Also makes for some very bad publicity on their part. However, I do believe they are much closer to principled artists than copyright bullies in the grand scheme of things.

  • Hey Nate,

    Yes it seems our parents had it right! And I also agree with you, the BB have matured over the span of their careers, and I don’t know too many people who could accuse them of being insensitive to political issues of all stripes. Calling them “bullies” is a bit off. With that said, their blanket “no BB songs in ads” rule is a little naive. It comes across as angsty but not completely thought out righteousness. I mean the group itself made a LOT of money using other people’s IP in a creative way. Theirs is, like the GoldieBox video, a “blend” of creativity and commerce. So they’re not anti-commercialism per se, they’re just anti-commercialism when it doesn’t suit their interests. It’s a kind of attitude often encountered in young students at art schools. The BB do have a right to protect their work from commercial exploitation, but only up to a point. Copyright is not an absolute right. It’s got a bunch of built-in limitations (fair use being just one) precisely so that culture (even in the form of ads for girls’ science toys) can be built from the expressions that have come before it. The idea behind copyright is not private property in the short term, but the cultivation of a free space of ideas for the intellectual growth of a society in the long term. I actually don’t think this case tests the boundaries of fair use at all. Going by fair use’s “four factors,” it’s pretty clear that GoldieBlox comes out ahead on this one. The BB might not like what’s being done to their music, but frankly, that’s irrelevant–copyright law doesn’t care about that. What it does care about is making sure secondary users aren’t exploiting copyrighted works in a non-transformative, derivative way to the detriment of the primary author’s markets (DVD piracy would be an obvious example of this). In this case, the use is transformative, and further it doesn’t hurt the BB’s market for either their music (ads and music are different markets) or licensing their music for ads (as the BB have made clear, they don’t allow the use of their music to sell products, so the licensing market is non-existent). Finally, you’re right, pushing this on their end would only make for bad PR. If the BB want to help convince us of their artistic “street cred,” perhaps they could produce a new song that addresses these very issues, or, even better, make one promoting science to young girls.

  • But copyright doesn’t really care about selling toys either, even if there is a social message behind them. The fact that it’s an advertisement–a distinction from the Acuff-Rose case–I think makes it a tougher case. But like I said, I do think the use is fair because of the creative way in which they’ve transformed the lyrics to parody the original.

  • You’re correct–the wording of the 1976 Copyright Act does not rank the various types of commercial speech. The first fair use factor simply ascertains whether or not the secondary use is of a commercial nature. Yet an expression being commercial does not foreclose the possibility of fair use, just as not-for-profit speech does not guarantee it. Since Judge Pierre Leval’s 1991 essay “Toward a Fair Use standard,” there has been a growing rhetoric of the “transformative” aspects of secondary uses. Judges have increasingly evoked both the essay and the term in rulings over the past two decades. Especially since Acuff (find parody is transformative), as well as Blanch v. Koons and recently Cariou v. Prince (finding artworks contained new messages and meanings different from the originals), there has now been established a trail of decisions that to my mind make this a pretty open-and-shut case. EFF has a detailed take why here:

  • obo

    MCA’s will, according to Rolling Stone:

    “Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes,” reads a copy of the will obtained by Rolling Stone. The phrase “or any music or any artistic property created by me” was added in handwriting.

    Even if Mike D and Ad-Rock have a change of heart, they have to explicitly violate MCA’s will to let GoldieBlox subvert Girls to sell construction kits.

  • While I can certainly respect Mike D’s and Ad-Rock’s desire to honor MCA’s will, the fact is GoldieBlox is not using a Beastie Boys song in their ad. They are using a parody of a Beastie Boys song. They are not equal. That’s a crucial difference. And in this sense it also means the remaining Beasties would not be violating the will. Additionally, a personal will has no bearing on the freedom of expression granted to U.S. citizens. I know MCA meant well, but that’s frankly irrelevant. It has no more legitimacy than if the will stated “Upon my death, I hereby decree that all red-headed people be put in jail.”

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