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?