“Legally, if you don’t have the appropriate permit for commercial use of someone else’s art, then you don’t have the right right to use it.”
Unless that use is fair use, because the new work is tranformative, comments upon the original, etc.
This being the basis for the production of a large fraction of the Beasties’ own music.
If we’re going to consider contrafactuals, then let’s ask what happens if the Beasties had sampled an artist we didn’t like – say, the McDonald’s corporation – in a way that commented upon the company’s message. And then say that the company threatened to sue the Beasties, arguing that they were published by a giant corporation and so should have no right to free expression.
If McDonald’s doesn’t sue the Beasties and censor their music, do they “weaken not only their own rights but the rights of all other artists?”
You’re right. The Letter U and the Numeral 2 made a very attenuated and distant commentary on U2 (and none, really, on Casey Kasem). By contrast, this is a direct, political commentary on the Beastie Boys work – that is to say, even more of a fair-use slam-dunk.
Say a fundamentalist church decided make an advertisement with a parody of John Lennon song Imagine, asserting that their religion is the only one that’s true. That seems fairly analogous to what’s happened here (assuming the Beastie Boys’ song is serious).
If making a parody version of a song for use in commercial advertisements was clear-cut fair use, wouldn’t we be inundated with ads using parodies of popular songs?
Under the “Pretty Woman” decision, Campbell v. Acuff-Rose Music, Inc., you basically have to be parodying the thing you’re quoting/copying. This is because it’s only when you’re directly commenting on the thing you’re quoting/copying that the copying becomes an essential part of conveying your message. In essence, it would have been much more difficult to point out how stupid the lyrics to “Pretty Woman” are without basically copying the song and twisting the lyrics. This is why a lot of what people claim are parodies really aren’t the sort of protected parodies described in Campbell, as they are not parodying the thing they’re quoting, but are using instead as a vehicle for satirical commentary on something else entirely.
The mandatory licensing scheme for covers only applies if you keep the same basic melody and lyrical structure without changing the “fundamental character” of the work (however the courts decide to interpret that). Substantial changes to lyrics, melody, or both removes the “cover” from the mandatory licensing scheme and means that the work is a derivative work. Of course, the thing about derivative works is that they are considered copies, and require the consent of the copyright holder in order to be legal.
As I alluded to above, however, it’s something of an open question as to just what changes are necessary to change the “fundamental character” of a song: there are plenty of covers which change the tempo and key considerably, perhaps transforming a cheery pop song into an dark and angsty dirge, but for the most part publishers have been content to allow these alterations and not challenge them as falling outside the mandatory licensing scheme.
If it’s a parody, as you state, then they don’t need to ask permission from anyone. Parody is a variety of fair use, and you don’t need to ask permission to make fair use of something.
That’s not a melody, but the song itself. The lyrics, while different words, are in the exact cadence and inflection of the original.
Sampling and remixing are a lot different than simply rewriting lyrics, especially in an advertisement. If that were OK, I could just change the words to Stairway to Heaven, record it and sell it for personal gain.
But that’s not what happened here. This isn’t chopped up and a new thing, but the same song, the same music, the same cadence, the same inflections with new words. That’s it.
Big difference here. Adam was asking that his own property not be used in a certain way, not that others people property be distributed to others.
When his songs are out of copyright (which should be a lot sooner than current law, but that’s another issue) they can be used any way anyone wants, but for now he and his inheritor’s own the song and can set limits on its use.
Too right that might not be valid; it’s nothing more than a misplaced legal footnote. Unless the remaining members have since renegotiated the terms under which their songs are published, of course.
Early 90s, a big brand (Levis? Budweiser?) used a recording of Screamin’ Jay Hawkins covering Tom Waits’ “Heart Attack& Vine” and fell afoul of a “no advertising” clause, but that was in Waits’ publishing terms and always had been.
The more interesting question here is that people invest themselves in the commercial (implicit) claims of a company so heavily – that their toys are a path to a transformed role for girls in society. This commercial, and this product aren’t “awesome”, they’re a coarse capitalization of, and diffusion of, people’s impulse to political change. Instead of acting in a substantive way, buy a product (which just happens to also pander to your sense of pop-culture irony). That predation on our sense of discomfort and dissatisfaction with the current status quo is the real exploitation here.
There is no such thing as “clear-cut” fair use. It is decided on a case by case basis, so there is always a risk involved if the copyright owner decides to litigate. This is why we are not inundated with ads using parodies of popular songs, not because commercial use somehow negates fair use. It doesn’t.
Not to mention the message of the ad undercut itself when it revealed the products being advertised are largely pink with some pastel blue thrown in.
The entire point of the first half of the ad was about how is was so limiting to only offer pink and pastel color choices to girls, and then cut to that exact sort of toy at the end? Marketing fail.
It should be noted, the toy itself is crap. We bought it for my daughter a year or so ago (was it a Kickstarter? I think my wife might have pre-bought it). My daughter was stoked when she got it, but she opened it up and there’s nothing really to it. You kind of put the “spinning machine” together once, spin it around, and five minutes later you’re bored and done. There’s no real engineering involved, or a lot of imagination required. What I think she’d REALLY enjoy is if I can find my old Erector set. But the Goldieblox - potentially a great idea, but really… it’s just “Girl Power!” marketing garbage.
One thing that might be a sticking point is that the target of the parody needs to be the source material for its to count as parody under the fair use exemption. This is why Penny Arcade’s use of Strawberry Shortcake in a parody of the ‘dark, gritty’ repurposing of Alice in Wonderland in video games was actionable - the target wasn’t Strawberry Shortcake, it was the game manufacturers.
Likewise, while 2 Live Crew’s song was designed to playfully subvert the original ‘Pretty Woman’ song as its main artistic goal, this use seems to be taking aim at toy manufacturers more than at the song ‘Girls,’ and consequently may not fall under ‘fair use’. But really, it all comes down to the individual whims of whatever judge is on the bench that day, it seems. Copyright law is kind of a total clusterfuck right now.
I think what I’m getting caught up on is that the song isn’t just a parody of the original song. If an artist came up with this song and stuck it on youtube by itself, everyone but copyright maximalists would think it’s fair. If they sold copies of the song, that would still seem fair. The song itself is obviously a parody of the original, it’s that it’s being used to sell something else that seems off.
Let’s say a bar parodies Electric Six’s song Gay Bar with a song called Straight Bar and uses that in an ad for their bar. Is that fair use?
