The saga continues in the dispute between the Beastie Boys and toy-maker GoldieBlox. As you may recall, weeks ago GoldieBlox filed a preemptive lawsuit in an effort to have a federal district court declare their parody of the BeastieBoy tune “Girls” in their viral video a “fair use” under United States copyright law.
GoldieBlox ostensibly took this adversarial stance without knowledge of a provision in the will of late Beastie Boy Adam Yauch. According to a copy of the will obtained by Rolling Stone, Mr. Yauch’s will provides as follows:
“Not withstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”
Shortly after learning of this provision, GoldieBlox pulled the commercial and issued an apology. This act of contrition was apparently too little too late. The Beastie Boys have now sued GoldieBlox alleging copyright infringement. The issue at this point becomes the merits of the argument that the GoldieBlox use constitutes “fair use.”
First, a little background on the fair use doctrine. The United States copyright law tries to strike a delicate balance between the protection of content creators and allowing for the free exchange of ideas. In that vein, fair use serves as an affirmative defense to allegations of copyright infringement. This doctrine is a bit enigmatic, with the lines of what is fair use and what is copyright infringement not always clearly defined. However, parody is generally accepted as a prime example of fair use.
When determining whether a parody of a copyrighted work constitutes fair use courts consider several factors. These factors include (1) whether the parody competes or detracts from the original, (2) the amount of the original used, (3) whether the use is transformative, (4) whether the use mimics, ridicules or comments on the original, and (5) whether the use is commercial in nature.
If a work detracts from or competes with the original, it will not likely be considered a parody-more likely a derivative work. The less a parody borrows from the original, the more likely it will be considered to be fair use. Further, the more transformative a work is of the original, the more likely it will be considered to be fair use. If a use mimics, ridicules or comments on the original, it will likely be considered to be a parody and fair use. Finally, though not outcome determinative, the commercial use of a parody will weigh against a finding of fair use.
The Supreme Court in Campbell v. Acuff-Rose Music opined that “the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence” under the law than “the sale of a parody for its own sake.” However, this comment by Justice Souter was simply dicta, and thus not binding.
GoldieBlox has asserted from the outset that their parody of “Girls” was never meant solely to poke fun at the Beastie Boys tune, but as a social commentary on the song’s misogynistic lyrics.
The outcome is still unclear at this point. For my money, I think this is a clear cut case of fair use. However, as the Beastie Boys point out in their complaint, GoldieBlox reaped significant economic rewards from this video. We will have to wait and see whether or not that fact will damn the fair use defense.