All of these songs are for profit. And, as pointed out in the threads from the original post, profit motive or commercial use does not preclude fair use. I think it helps to distinguish the ethical discussion from the legal discussion. The ethical side is wide open, and when users form a community and declare norms, it can effect the legal sideâso our discussions here can matter, eventually, if we want them too. Thatâs one reason I pay attention around here. I have been involved in the effort to clarify copyright confusion with media educators in the U.S., and we created a statement of fair use for media literacy educators that articulates the norms for practice in educational settings (thereâs one for documentary film makers, too). We even got the copyright office to allow media educators to circumvent DRM (e.g., rip from DVDs) to create classroom materials. Itâs encouraging to see so many folks in the boingboing conversation talking about these issues, but itâs discouraging to see so much confusion persist about the rights of users and owners of copyrighted materials. The legal side, when particular user-community norms are not articulated (like this case), or not heeded, then involves the fair use issues from section 107 of the copyright law of 1976. We made an educational music video a few years back to get across the principle concepts of U.S. fair use by which cases are judged (along with relevant case law). The overarching concept is the cost to the copyright holder versus the benefit to society, judged in terms of âtransformativenessâ (of the older work in the new) considering 4 factors of nature, purpose, and amount of the use, and the effect on potential markets. Iâd be curious about how much a judge would see the nature and purpose significantly transformed in the public interest here (it delivers a âtransformedâ message about gender identity, perhaps, but is primarily used to sell toys). As you point out, the amount of the Beastie song used in the ad is substantial, much more than necessary to deliver the message, except under the defense that this is a parody that depends upon recognition of the original song to deliver the new âparodicâ message. That parody is complicated by the ad context since itâs purpose, it could be argued, is primarily to sell toys, not to express notions of gender identity (defense would claim both). The deciding factor might be, as is often the case, the effect on potential markets, which in this case seems negligible in terms of the cost to the copyright holders, unless the judge entertains the notion that the Beastieâs market cred is somehow infringed upon by the critique (which would actually strengthen the claim for clear parody, changed purpose and nature, etc). When weâre talking legality, Iâd like to see more opinions in our discussions that reference the concepts upon which these cases are judged. And itâd help to know when weâre talking ethics and when weâre talking legality.
I donât speak for him, obviously; but I think that part of your confusion stems from the fact that âintellectual propertyâ is one, among at least several others, way of looking at the matters of creation, appropriation, etc.
Consider, for instance, âacademic honesty/plagiarismâ. Also a way of looking at who is allowed to copy what, under what circumstances, what obligations (if any) they have when doing so; but pretty much 100% orthogonal to âcopyrightâ (as well as not even being particularly static over time). In copyright terms, itâd be 100% kosher to hire somebody to write a paper and then present yourself as the owner. Work for hire, boom. no problem. If you copied a work you didnât own, though, a mere citation of the original author would make no difference. In the academic context, the reverse is true, handing in a work for hire would be entirely unacceptable, quoting and citing someone, even against their objections, would be absolutely fine (though, obviously, if there was too much quotation and not enough original material, itâd be a bad paper, but not a plagiarized one).
Iâd assume that various branches of the arts have their own (distinct from, if expressed in the language of when itâs time to go to court, âintellectual propertyâ) mores in terms of what sorts of appropriation and transformation is or isnât acceptable.
Then you have the schism between the âintellectual propertyâ as pure property branch, and the (most commonly french) âmoral rightsâ enthusiasts who consider control over some aspects of a work, or even transformative references to a work, to not only be the creatorâs rights; but to be inalienableâŚ
Then youâve got the ongoing spat over whether âcommercialâ/ânoncommercialâ is a salient distinction, whether there is some sort of intermediate âcommercial-but-suitably-small-scaleâ category, and the (sometimes related, sometimes not) question of whether âcopyrightâ should be a protection from actual harm (with activities not harmful to the commercial value of the work considered out of scope) or whether it is not incumbent on the copyright holder to demonstrate actual harm; but simply to object.
Iâd be rather surprised if anybody has a âconsistent position on intellectual propertyâ, unless theyâve run into and decided on, an almost arbitrary number of culturally salient variables.
Nice set of different contexts for thinking about this stuffâthx. Discussion gets messier when weâre talking about different conceptual issues without knowing it. For me, a troubling issue is when the ethical opinions get mixed up with legality. I can feel like the Beastieâs song is a lazy rip off, or a clever commentary, on the Isley bros. without saying its an illegal ripoff (or make a case the other way); and the toy ad vs. beastie-song conflict is even more interesting. I was at a teacher conference yesterday where a supposed communications scholar was saying that plagiarism is copyright infringement. A colleague made a big show of a protest to clarify (Not necessarily so!), and stormed out.
Iâm only mentioning it because I have not seen it brought up in this discussion, but MCAâs will explicitly states his music cannot be used in advertising.
Okay, so according to the Huffington Post (I know, I know) itâs the other way around: http://www.huffingtonpost.com/2013/11/24/beastie-boys-goldieblox-girls-copyright-infringement-_n_4330583.html
Goldie is suing the Beastie Boys preemptively.
This makes the Goldie Blox people a LOT less sympathetic.
I would agree with most of what you say, but a big problem is that a lot of Coryâs IP-related posts are presented with minimal commentary, making it difficult to determine what he agrees or disagrees withâand how this fits into his greater idea of what IP rights should look likeâother than that he agrees or disagrees with the subject of his post.
An alleged âscholarâ got up in a professional context and conflated plagiarism and copyright infringement? Thatâs⌠Not Impressive.
(An inconvenience, of course, is that ethical opinions are mixed up with legality, just not necessarily any given commentatorâs ethical opinions: âfair useâ exists largely as a list of âstuff we thought was too important to treat as secondary to the commercial interests of the copyright holderâ. In practice, there isnât a particularly coherent ethical opinion; because âfair useâ is an empirical mess of what a fairly large number of congresscritters were able to hash out, subsequently ground into case law by who-knows-how-many different judges and juries. Thereâs no single personâs ethical opinion left after a process like that, if there ever was one to begin with; but the law certainly doesnât treat copyright as a matter of pure commerce.
Because of those complications, anyone who opines that something is or isnât âfair useâ based on their ethical judgement of the situation is probably dangerously in need of a decent lawyer; but anyone who opines that the bounds of copyright law ought to allow or forbid a given thing because it is âfair useâ is on legitimate ground, albeit possibly not very interesting to listen to.)
Just because the situation didnât need any more complexity, it is even possible (and arguably cogent) to assert that something does fall under the scope of copyright law; but that a rightsholder who exercises their right in that area is guilty of being unprofessional/censorious/a real asshole/hypocritical/etc. In the same way that you might agree that property rights give somebody the right to keep kids off their lawn; but unless the kids are causing some sort of damage or something, what kind of lousy neighbor would freak out and call the cops because somebody walked across their lawn? You might say something similar about, say, commercial parody: that you donât think anyone has a right to parody others for profit (I think that youâd be wrong under current American law; but I am not a lawyer or your lawyer); but you could simultaneously say that anyone who goes to court to attack their parodists is a thin-skinned bully and you think the worse of them for it.
Even though their suit is for a âdeclaratory judgementâ rather than cash?
âGoldieBlox therefore brings this declaratory relief action to clarify the rights of the parties, and to refute the baseless assertion of copyright infringement finally and definitively.Plaintiff seeks a declaratory judgment holding that its parody video does not infringe anycopyrights held by Defendants and is protected by the Fair Use Doctrine. Plaintiff also seeks aninjunction enjoining Defendants from any efforts to enforce any copyright in Girls against theGoldieBlox Girls Parody Video, including through the use of DMCA takedown notices or otherwiseâ
They are filing suit in an effort to get a statement from the court agreeing with their âfair useâ claim (which, without either a declaratory judgement or a dismissal of a lawsuit against them on those grounds, remains just a claim of unknown and untested veracity) and, in line with that claim, forbidding action taken on the grounds that the song is in fact copyright infringement.
Itâs deeply obnoxious that âfair useâ is murky enough that you need a declaratory judgement to know if you actually are doing âfair useâ or not; but a request for declaratory judgement is a pretty toothless lawsuit, essentially asking the court to put its official fancy-stamp on a finding of fact.
That stipulation in his will was brought up in the previous discussion on the topic. Thereâs a lot of question about itâs applicability, though, for a lot of reasons. A few being the question of legal ownership of the music, and the idea of publicity rights vs copyright. And what constitutes âadvertisingâ (though that oneâs pretty clear in this case). And the whole mandatory compulsory license issue thing. Anyway, Forbes discusses it here:
I find it pretty interesting when someone, as you say, âopines that the bounds of copyright law ought to allow or forbid a given thing because it is âfair use,ââ especially when it leads from a particular interesting case to folks sharing relevant case law instances for guidance. There has been precedent for success for statements of âBest Practicesâ from particular communities in the U.S., like media literacy educators and documentary filmmakers (disclosureâI worked on the former). If discussions develop into articulated community positions, the law can be influenced, or at least judgment of cases (law interpretation) can be influenced. The cost of litigation is most often a tremendous burden and/or risk for independent users, though, and a consideration for bigger entities, too.
Sorry I missed that in the earlier discussion. Thanks for posting the Forbes link, I had not seen that.
I am pretty sure that Yauchâs will can not limit user rights, it can only extend them (in the way that a creative commons license can grant uses that might be vulnerable as copyright infringement, but canât preclude fair use, or make it illegal for you to make transformative use something without, say, giving attribution). His will makes it pretty clear, though, that any ad makers using his stuff should expect the inheritors or living owners of his music to litigate against that use of his music in ads. This is aside from the issue of whether or not itâs respectfulâŚ
Didnât the Verve have a verbal agreement with the Rolling Stones for a sample they used? Everything was fine until the song blew up, then the Rolling Stones went after, and got, most of the royalties.
So, I have a question. In the era of âFCC v. Citizens Unitedâ and corporate free speech, wouldnât claiming it as a parody be better defense than fair use?
Could be⌠Man, thatâs scary/sad⌠or I am just old/small⌠I still donât know how vulnerable the âparodyâ defense would be from the fact that it is a toy commercial, and not just a video parodyâit sells an image of the company. Not sure if a judge would prioritize the ad purpose over the parodic message or consider both together. Man, bringing up Citizens United gets more depressing to me if we think of the converse logicâdoes any individual opinion or expression on the web now become an expression of my âcorporateâ identity, and therefore can anything I create and post be construed as really an ad for me (my cleverness, my politics, my self, body)? ugh.
It would seem to me (not being the lawyer I am) that under Citizenâs United, it doesnât matter whether it is for profit or not-- since a corporationâs only real motive is to make money.
You are looking at this all wrong. Can we incorporate, make and sell a Mickey Mouse porno video, then have protection as a parody? I see a Kickstarter.
How about Curious George co-starring with Mickey in âBrash Monkeyâ using the Beastieâs song, just to bring it altogether, in an ad for the company you suggest incorporatingâŚ
Oh, and parody is a fair use defenseâitâs just a kind that is recognized as needing substantial, recognizable use of the original work in order to comment on it. Itâs usually upheld when the commentary has a clearly different purpose from the original while commenting directly on the original message. The toy ad has a decent case for defense as a parody, but I donât know whether it might be vulnerable based on its primary purpose to create a âgirl powerâ image for the toy company rather than to comment on the Beastieâs song and message.
