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.