Wednesday, April 23, 2014
 

Beastie Girls

So it seems the Beastie Boys, along with their corporate record label cronies, have threatened to sue GoldieBlox for copyright infringement for the toy company’s recent viral video parody. The video takes its cues from the Beastie Boys song “Girls” but inverts the original’s misogynist lyrics in favor of a pro-science/math message for young girls. 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 goes the GoldieBlox version. In my mind this is clearly a parody and as such should be deemed a fair use. GoldieBlox has actually launched a preemptive strike in the matter by filing documents with a California Court that would force a ruling on the issue.

It’s especially ironic that the Beastie Boys are behind the infringement drama, as it’s generally understood that they, along with other artists such as Public Enemy and De La Soul, were so integral to the early and creative use of samples in ’80s hip hop. The Beasties of all people should be sympathetic with the novel use of pre-existing materials. This not to mention that the group is itself still dealing with a lawsuit from their seminal recording Paul’s Boutique.

Pundits no doubt will look to fair use’s “four factors” to help evaluate how much of a case there is here. Perhaps the strongest accusations against GoldieBlox are a) it’s a commercial venture exploiting the familiarity of the Beastie Boys’s song (though commercial activity does not foreclose fair use) and b) derivative rights (though it’s unclear how realistic it is to assume the Beasties would produce or license a version of its own song that mocks the band).

Much has been said lately of the concept of the “transformative” within the fair use doctrine (e.g., Cariou v. Prince). In my mind, there is no doubt the GoldieBlox version contains “new information, new aesthetics, new insights and understandings,” and is therefore transformative/fair use. I mean, wasn’t this already settled in 1994 with Campbell v. Acuff-Rose Music

 

 

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Comments: 4

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  • Would we be OK with a white supremacist group altering the lyrics of the Beastie Boys song to include a racist message in a video made to sell ammunition?

    Just to be clear: I don’t mean morally OK. I mean legally OK.

     
     
     
  • Hi Jonathan,

    A similar issue came up in the past when various Republican candidates (such as John McCain) used music in their campaign stumping by artists who did not share the same politics. I seem to recall the artists made a fit about it, but ultimately couldn’t do much. In your example, I imagine there would also be a big stink, but legally, the white supremacists could argue fair use. However, it might be difficult to make a parody claim, as parody is historically associated with humor and “correcting” ridicule. It’s typically meant to expose highfalutin or questionable positions (such as the Beastie Boys’ sexism). Thus it might be tough to claim that a racist and/or pro-gun expression is effective insofar as it is a parody that can take the moral high ground (last time I checked, outward racism was a pretty big no-no in the US). But who knows, parody is just one aspect of a fair use defense. If it can be proven that the use is “transformative,” and in your example in may very well be, then it might fly.

     
     
     
  • Assuming that it is parody, do you think that the court should look at the “moral” content of the works in question to come to a legal conclusion?

    I feel uncomfortable about that given that morals change. I mean, fifty years ago racism was the “in thing”.

     
     
     
  • Indeed morals change, and so do judge’s subjective interpretations of things, however they may appeal to a certain “neutrality” or “objectivity.” Looking back in the record you’ll find plenty of examples of rulings against parody defenses because the judge didn’t find the humor (e.g., Disney v. Air Pirates). Judges, as human beings, can’t help but bring their own convictions into the mix. In your hypothetical, a racist parody assumes that the “anti-racist norm” is something that deserves to be knocked down. I don’t think you would find too many judges (or anybody) willing to go there today. As you say, fifty years ago tolerance for overt racism might have been the “in thing” (I guess depending on where one lived), but in that time, I’d like to think we’ve progressed (though we’re far from perfect). Anyone defending a racist/pro-gun expression would do much better arguing the use is transformative as a free speech expression. While such a defense would be tricky no matter which way you slice it, the parody argument seems like a dead end to me.

     
     
     
 
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