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.
… 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.
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.
I agree. They may have felt it was a way of crediting the Beasties for the original song, and so not looking like they were trying to pass it off as entirely original. But it did create the appearance of collaboration or permission.
If I’m not mistaken, the Naked Gun ad didn’t contain anything that was actually in the film. It wasn’t something created in the process of creating the film, it was an entirely separate attention-getting device created specifically to hawk their goods (the film). I don’t really see that as any different, or superior, to what GoldieBlox did.
There seem to be a fair number of lawyers and/or law students commenting on these threads. In my opinion simply being a lawyer or law student doesn’t mean that you necessarily have a lot more insight into these issues, especially if you haven’t taken courses in copyright. Even amongst those who have taken courses there are going to be areas of disagreement, and even among practicing lawyers who practice copyright law there are going to be different perspectives. Obviously EFF lawyers bring their perspective, while lawyers working at large firms who typically represent copyright holders will have another perspective.
Edit: I don’t want this to read like I think that other lawyers or law students here are being injudicious. To the contrary, I think that they are typically the most cautious commentators here, and the most likely to see both perspective. I think that this often makes their views unpopular, because they tend to deal with the real-life uncertainty of the what the law actually is, whereas many other commentators talk about what they think the law ought to be and how they think things should be interpreted. Of course there are also many lay people who take a balanced approach as well, but I would be wary of anyone—lawyer or otherwise—who makes definitive proclamations on these issues.
I read your overly balanced post, noted your lack of rancour or deliberate misinterpretation and saw the respect given to professionals on both side of the argument. Begone from the internet, foul fiend, before your rationality spreads and infects us all!!!
@lorq and @PhasmaFelis Now that I’ve read it, I stand by most of what I said. I’ve seen most of these arguments in the past week or so, and was able to extrapolate what they would be. I’ll add that the use of “debunked” in the headline is somewhat misleading as well, since every single part of the article is basted like a Thanksgiving turkey in caveats. It could decided this way, it could be decided this way, nobody knows what will happen in court because each case is determined individually. The only real debunking is, “No one is certain how this will play out” and “The Beastie Boys didn’t sue.”
And that’s why I stand by my points regarding the length, cadence and inflection of the song as well as its not being parody of the original since the original was already parodying misogyny. Even if the music was re-recorded it is indistinguishable from the original. I listened to both in succession and really can’t tell the difference between. Def Lepard was in a fight with the record company that owned their original recordings, and their remedy was to re-record the songs faithfully to the original recordings and re-release them on their own. They were allowed to do it because they still owned the music and lyrics, while the record company only owned the performance. GB doesn’t own the song, so simply recording the original faithfully doesn’t change anything for me once it’s indistinguishable from the original.
There’s no new instrumentation, it’s note for note and the timing is pretty much exact. New lyrics, new recording and no samples; but the instrumentation is intact.
I wonder what the discussion was like during the conception of this. Surely the conversation about copyright came up and, assuming the team included fans, you’d kind of think they would know or have come across the Will argument.
Asking the Beastie Boys for permission would obviously be denied so they had to options: do it anyway or drop/alter a great idea. They could piss fans off or they could try to adapt the concept.
And I think that’s what irks me here. They could have done something else but they didn’t. It could have been a genuinely sexist song they parodied, or any number of alternatives … but they stuck with one where one of the artists had left a will saying he didn’t want his work used in a commercial fashion. They did have options.
It’s not a new problem. Creatives throw out hundreds of awesome ideas because of legal and ethical issues surrounding them. It sucks but, you know, you can’t have everything. So I guess when it comes to GoldieBlox, I admire their balls but not their ethics.
Why would I take the time to read a critique from someone who hasn’t read what they’re critiquing. Seriously. This is a post about a specific article. Seems a basic gate for commenting would be to have skimmed the freaking thing.
You start with a very dubious statement (brilliant? Uh, no. More like painful.)
Anyway, you, uh, didn’t read the article did you? Or do you just like saying things you wish were true, but have no bearing on case law?
Oh–I know. It’s all a ploy! You made those easily refutable claims to get people to quote pertinent paragraphs of the article here so you don’t have to click the link! Pretty clever! Clicking a link is hard work!
Please take the time to read or not read my post. It’s really of no concern to me what you do, as you’re the sort of person who would take the time to be insulting and belittling to people on the Internet.
It’s a must read, especially if you think that “ads can’t be fair use” or “last wills carry more legal weight than fair use” or even “if GoldieBlox’s video is fair use, then all advertisers will be able to use any song for free.”
I’m lost here. Is Cory now in favour of current Copyright law despite the moral implications? As I’d always assumed it was the opposite…
Because I didn’t see anyone claiming that “last wills carry more legal weight than fair use”, just that it’s slimey to ignore such a thing for hawking toys. Likewise I didn’t see anyone claim that “ads can’t be fair use”, just that it seems like an unfortunate use of ‘fair use’, and not what I imagine the clause was created for.
“But Goldieblox filed a very particular type of lawsuit, a declaratory judgement. Unlike typical lawsuits, Goldieblox isn’t seeking damages. They’re asking the court to issue an opinion without ordering Beastie Boys to do anything in particular or pay damages, beyond possibly their own legal expenses.”
We may be talking at cross purposes. That the arrangement is the same or very similar I agree with, but the actual instruments that were recorded were different: these aren’t samples, this is a wholly different recording.
