Why Is GoldieBlox’s Use of Beastie Boys Song Not Fair Use?
A parody has to be about the song — like, say, if you’re parodying a song, then the parody is about the song — that’s the sole point of it. Not to sell a commercial product for a for-profit company. So you don’t take a parody of a song and sell Shell Oil, or you don’t parody a song to, for instance, advocate some position that maybe the Koch brothers want to advocate or that George Soros wants to advocate. It has to be specific. The parody has to be about the song.This is a commercial use of a song to sell a product, which — like I said — even the Pirate Party, with their limited view of copyright, that is where they say copyright comes into effect.
If you’re still here and not bored to tears by this debate, there’s this good overview regarding the above by Lori Werderitch, where she distinguishes satire from parody, indicating, it seems to me, that GoldieBlox’s use was more satire than parody, and thus making their fair use argument much more difficult.
And finally, here’s The Economist’s version, and a groovy remix via Fisher & Fiebak.
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Nate Harrison:
December 7th, 2013 at 12:45 pm
Isn’t it possible that parody and product selling aren’t mutually exclusive? Might GoldieBlox being doing both? You raise a good point–this is not de facto parody and thus fair use. For me the conundrum comes with weighing how much of the expression is a critique of the song itself (I think it is), how much is a critique of sexism in general (GB wants to promote a pro-girl-science position, over and above anything to do with the BB), and how much those two things factor in selling. Several courts have made clear that nearly all forms of expression listed under fair use (news reporting, commentary, etc.) are made for profit, so again I think the sticking point would be how much doe the product commercialism weigh against the song’s parody…
Sergio Muñoz Sarmiento:
December 7th, 2013 at 1:27 pm
Yes, I agree. This would have made a great test case, but given how much courts seem to be screwing up fair use cases it’s probably for the best it settled. I think this situation hinges on whether or not a parody, regardless of how it’s used, is fair use. To me, if parody was always fair use regardless of intent or referent, would gut copyright quite a bit. And as you know, I think copyright law as is works quite well. Great case!