Actually, I’m well aware of the original song’s intentions. That doesn’t change the fact that the message is entirely changed in the new version. (In this case from sarcastic satire to direct honesty.)
As for your failure to understand my Rainbow House example, perhaps the problem lies in your trying to view the rainbow flag as the modified and owned object, and not The White House itself, as well as with your inability to realize that the White House is more than just a structure - it is a symbol. Painting it rainbow colored would have exactly the same sort of impact as changing the lyrics to a song.
People have been changing song lyrics - and in the process the meaning and significance of the song - for all of history. “God Save The Queen” of Imperial Britain became “My Country, Tis of Thee” of Imperial America. The pro-war “When Johnny Comes Marching Home” became the decidely anti-war “Johnny I Hardly Knew Ye”. The tune, the melody, the cadence, and all the bits and pieces of the music itself may be identical, but to say that the song is unchanged, that the meaning isn’t turned entirely on it’s head, is absurd.
To be clear my reference to sampling was a response to Cory’s comment in the original post about the irony of the Beastie Boys getting sued over sampling in Pauls Boutique. But yeah the fact that this commercial isn’t even a sample at all is my point exactly. I thought I was pretty clear, but sorry if I worded it awkwardly or something.
Update: Nov. 24, 6:53 p.m. – A source familiar with the matter said the Beastie Boys have not made such a claim, adding that GoldieBlox has sued the band preemptively. We will update again once we receive more information.
Nov. 24, 10:28 p.m. – A representative for the Beastie Boys explained: “There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys.”
@doctorow, @beschizza, would be nice to see the post updated to include this new info. Thanks.
If this latest version of events is true, this could be a brilliant strategy by Goldieblox to use the controversy of a legal threat to fuel the virality of their video. Maybe not the tact I would take (treading on the greater fame of the beastie boys to get the attention of news outlets and others), but nonetheless successful.
There are several replies here that mis-summarize, and this is one of them. Cory is munging together the concept that parody can be commercial with “you can use a parody in a commercial.”
To use the parody exception, the product you are selling must be the actual parody. i.e. you can sell a record of parody songs, or a book that clearly parodies another work.
But Goldieblox isn’t selling the parody, they are selling kids toys USING a work of parody.
The case law that makes this clear is Dr. Seuss v. Penguin - In 1997 the 9th Circuit found against the authors of a book satirizing the O.J Simpson trial whose work was a parody of “Cat in the Hat”. The court basically found that you need to be parodying the original work, not using that original work as a vehicle to parody a third party.
So, in summary - we could all go out and buy a GoldieBlox album featuring this song, but it’s much harder for GoldieBlox to use the song to sell something else.
book satirizing the O.J Simpson trial whose work was a parody of “Cat in the Hat”.
…
The court basically found that you need to be parodying the original work, not using that original work as a vehicle to parody a third party.
O.J. Simpson doesn’t sound like he has anything to do with the work of Dr. Seuss. Just because you make a derivative work doesn’t mean it’s a “parody”. Taking someone’s message, like girls doing laundry, and making a parody where the song instead empowers girls by claiming they’re capable of becoming great engineers is parody. I fail to see attaching an advertisement to a parody stops it from being one.
Yeah, here’s an update form the link in the BB post, too:
UPDATE: On Monday, the band released a letter saying while it was “impressed by the creativity and the message” of the Goldieblox video, “make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads… When we tried to simply ask how and why our song ‘Girls’ had been used in your ad without our permission, YOU sued US."
So GoldieBox is turning out to be a very, very aggressive advertiser/marketer, to the point of being 100% ethically suspect, though. This isn’t even a question of copyright anymore. It’s a question of sheer manipulation of the public by GoldieBox.
The Seuss case would only be controlling the 9th Circuit, and aside from that it really has little bearing on the fact pattern presented here. In this case, the song would still be parodying the Beastie’s song, as the new lyrics still subvert the original lyrics. This is very different than the Seuss case, where Seuss’s style and Cat in the Hat character were used to tell a story about OJ Simpson, and not to comment on The Cat in the Hat itself.
I suspect that at trial the real questions will be: 1) is this a parody, and 2) if it is a parody, is the parodic nature sufficient to overcome the commercial use of the parody not as a product in itself but as an advertisement. I can potentially see a court saying that the parody as an independent piece is fair use, but that using it for advertising purposes is not fair use. Such a finding would be philosophically in keeping with the reduced 1st Amendment protections granted to commercial speech.
Quoting from your link since not everyone will read it:
On the other hand, in the key precedent for such issues, Campbell vs Acuff-Rose Music, Justice Souter explicitly said 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”.
This is a distinction the Beasties intuitively understand. After all, this version of Girls has been viewed more than 3 million times on YouTube, without so much as a peep from the Beasties.
(I cannot watch the second link at the moment, so I have no idea if it is a parody.)
Also:
Given the speed with which the GoldieBlox complaint appeared, indeed, it’s reasonable to assume that they had it in their back pocket all along, ready to whip out the minute anybody from the Beastie Boys, or their record label, so much as inquired about what was going on. The strategy here is to maximize ill-will: don’t ask permission, make no attempt to negotiate in good faith, antagonize the other party as much as possible.
The video is a high school project. “The assignment was to make a music video of a song.” They used the entire song as the soundtrack for some high school kids dancing around and making faces for the camera. Definitely non-commercial, but takedown notices have been sent for much less by people other than the Beastie Boys.
