Beastie Boys Counterclaim Against GoldieBlox, Lawsuit Continues

Apparently not.

Nicholas O’Donnell gives an overview here, and he believes GoldieBlox’s use of the Beastie Boys’ Girls song is fair use. I disagree.

So, is this lawsuit just a logistical error. I don’t think so. I’ve mentioned smart lawyering before, and this makes me think it was a tactical move by the Beastie Boys in order to put GoldieBlox on the defensive. I’m guessing the Beastie Boys got a bit tired of GoldieBlox’s “holier-than-thou” mentality and they want to make sure no one else uses their copyrighted work for commercial purposes, regardless of the product and its content. Plus, it doesn’t help that GoldieBlox got cute by trying to cloak the commercial use of a copyrighted song to sell a product under parody.

Question is, who’s gonna blink first?

2 comments on this post.
  1. Nate Kleinman:

    Curious about your thoughts, Sergio–how much of this do you think will hinge on the political leanings of the judge/jury? I know that should have nothing to do with the analysis, but it seems fair use leaves so much open to the subjective leanings of the fact-finder, and (in my opinion) wherever they fall on the political spectrum would be a clear indicator of how they’ll rule.

  2. Sergio Muñoz Sarmiento:

    Hi Nate,
    And apologies for my belated reply. You raise a good point (and one that a previous commenter, Jonathan Tobin, raised as well).

    I think the issues of “sexism” or “misogyny” may play a role in this case, but it shouldn’t. It may also depend on the gender of the judge or jury (if it goes that far).

    But, as I said, it shouldn’t. Beside the obvious reason, this would give appropriators an unfair advantage. Why not just pick songs with catchy tunes that one can “critique” under the auspice of gender, race, sexual orientation, etc (basically any protected class)?

    Although “criticism” and “commentary” is in the fair use preamble, if courts allowed appropriators to use copyrighted content, under the veil of criticism/parody, with the main intent of promoting a commercial product, this would pretty much gut copyright protection.

    So, again, the key issue that needs resolution is what I posed in the blog post above: is parody always fair use, regardless of commercial intent and use?

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