Beasties/GoldieBlox debunked

And not for the first time either. In the article it’s pointed out that should EMI come knocking, GoldieBlox is most likely going to have to answer up. Given the enormous cost of fighting infringement claims, not to mention the possible verdicts, I wonder if pushing the envelope is really such a good strategy to keep on running with.

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GoldieBlox has really done an excellent job demonstrating poor taste every step of the way.

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Ok, good article. But it’s the last one I’m going to read on the topic until I see one with the headline, “Court rules that _____.” Besides the actual legal judgement, this topic has been exhausted.

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Like to see the Cost: Benefit analysis of coming off like asshats vs. brand recognition

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Surely there’s a difference, though, between the use of parody in commercializing works of art, as in the precedents of the Naked Gun and 2 Live Crew cases (liberal use of the term ‘art’), and simply hawking goods as Goldieblox are doing?

Thanks for posting, Cory.

As previously mentioned, @doctorow and @waxpancake have been at the center of some very enlightening conversations about the complex nuances of this case.

That said, I reiterate my humble request that Doctorow’s original posting be updated or amended to reflect the fact that the BBoys did not send a copyright threat. Cory’s endorsement of Andy’s post seems to accede that - as it’s the first myth that Andy rebuts. I admit that we won’t know whether Cory’s initial framing is correct until we all see what correspondence the BBoys might have sent to GB prior to GB’s filing for declaratory relief (surely, they might have sent a chilling effects letter, and I will join in shaming them for it). But, until that is proven, I believe it’s right to amend the initial report to reflect recent events. Because SEO. Because it’s a more accurate version of the public record. And because there’s already enough confusion about this complex case circulating the web that we don’t need more heat than light shared. Again, paging the managing editor, @beschizza, in this regard.

(if it matters, I think my record of postings prove that I’m both a huge beastie boys nerd and am inclined to believe that the law doesn’t support their laudable moral anti-ad position on this matter).

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It’s a brilliant ad, which is why I’m so disappointed at their misuse of copyrighted material and misapplication of fair use.

Bottom line: if you believe that Bruce Springsteen has a right to object to John McCain’s use of “Born to Run” in an ad for his 2008 presidential campaign, then you have to come down on the Beastie Boys’ side on this one. An artist has a right to restrict use of the copyrighted work for commercial purposes. Goldieblox can afford to pay an artist for music or to make their own.

Use of a copyrighted work in an advertisement for a product creates the assumption that (A) the artist was compensated or (B) the artist does not object to use of the music. Beastie Boys are in the right on this one.

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Personally, I think their biggest chance at legal trouble was using the Beastie Boys name to advertise to their video, and making people think the Beastie Boys contributed to it. Unlike the stuff mentioned here, which is just “they were kind of dicks to do this but it’s probably legal”, people confusing their work for work sanctioned by or involving the beastie boys seems like it could well be trademark infringement, right?

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Has anybody else noticed that the original video is now marked as “private”? It’s been re-uploaded with a new title that removes the Beasties name and a whole new original sounding lyric-less song.

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You sure have a lot to say for someone who hasn’t read the damn article.

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Yeah, you really ought to have read the article first.

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Wow that was a quick find. YouTube tells me that the new video was uploaded only 15 minutes ago. I wonder what happened.

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That’s very well presented, Cory. Thanks for the link! I still (perhaps irrationally) despise the notion of advertisements becoming ‘authenticated’ outside of the Spectacle. I think it has something to do with looking at commercials on lsd-25. I can’t seem to shake to loathing.

Twice now I’ve heard about GoldieBlox, thought ‘what a cool idea’, watched an ad for them, scratched my head wondering what the product actually was, and then finally left with the impression that all the good construction set ideas must have already been patented.

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Yep, look at that. Ethical retreat or step 5a of a Bernays-ian launch campaign?

Uh. . . you realize that GoldieBox did “make their own,” right? New instrumentation, new lyrics, new recording, no samples: the Beastie Boys do not own GB’s parody of Girls.

NB: I am not a lawyer, not your lawyer, and this is not legal advice.

Despite not being written by a lawyer, the article is pretty good. I especially like the parts where he acknowledges that copyright cases are very fact intensive and difficult to predict:

Only a judge can decide whether Goldieblox’s parody is fair use. And, until they do and all the appeals are closed, none of us will know.

This closely tracks what my copyright professor told my class when I was in law school: “If you’re ever more than 60% sure about a copyright dispute, you’re probably looking at it wrong.” (And she wasn’t just talking about the difficult cases that make it into casebooks.)

The inherent unpredictability of most contentious copyright disputes is why I find it galling whenever Cory or many of the commentators here say that something is “clearly/obviously/definitely fair use/parody.” It’s usually much more difficult to make this determination, and given that fair use is an affirmative defense to copyright infringement (as in, it’s the defendant’s burden to show the use was fair use, and failure to show this will likely result in being found liable), there’s a substantial amount of risk in relying only on fair use.

That’s basically a Trademark or personality rights argument, and not a copyright argument. Confusion in the marketplace and personal endorsement are not protected by copyright.

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… Um yeah, except for the fact that you clearly have no idea wtf you’re talking about.

While it’s been pointed out to me that there has been a reasonable amount of case law since the release of this song and subsequent lawsuit, it is the quintessential example of a parody/fair use copyright case:

In a nutshell, it was found that that song was legal, including the fact that it contained a (pretty obvious) sample of the Roy Orbison song.

My point is that parody is very much protected, even if if it would be otherwise infringing.

And speaking of clueless, you don’t seem to even see the incredibly obvious failing of the Beastie Boys’ song. It’s actually not at all clear that their song is even a parody, and is, in fact, very easy to take at face value. Even if someone knows it’s a parody, I could easily see them be incredibly annoyed by the song — all the more reason for a parody IMHO.

Holy crap, someone that has actual background knowledge of copyright law from the lawyer’s side speaks up. That’s kinda awesome. I don’t want to imply that cory doens’t know what he’s talking about but always nice to have a perspective from ‘the other side’ of things as it were.

Any other words of wisdom?

There’s a difference in that there’s no transformative use in most political campaign use of songs. They’re used as-is, they aren’t commenting on the song, etc. It’s simply used as background music or atmosphere music in an ad or a live event.

A campaign ad might well be able to get away with using songs without permission, if, for instance, the politician fell out of a time warp from 1987 and the ad was about the scourge of heavy metal or rap, and snippets of songs were used as examples.