I might be pushing my luck by posting this so if it gets deleted I hope SOMEONE sees it at least. In my previous comment with the John Hartford quote it used to start with me calling out Cory for being butthurt and making a second post about this topic because no one agreed with him in the first thread about this topic either. Pretty innocuous and not unfair criticism I thought. Well low and behold I come back to see whats been going on in the comments and someone at BoingBoing has edited my post to take out the part where I call out Cory.
I just find that pretty fucked up for a site that has been championing free speech and internet freedoms since its inception and one that I had grown to love for its spirit for over 10 years to do some grimy shit like that. My comments have been downright deleted before as well and wouldnât you know it its always when I am criticizing the author of the post.
Not sure how to see calling someone out for âbeing butthurtâ as âpretty innocuous.â It is fun to see a call out for hypocrisy of an author of a callout for hypocrisy⌠cue the mobius strip! For whom is the funhouse fun?
IF you can defend a recording as parody, that can sometimes be stronger protection than fair use. But parody has a very specific meaning under the law; it has to specifically be a comment upon the original.
And yes, that means that â as has been pointed out many times â itâs safer to draw Mickey Mouse as a dope-fiend or other major refutation of his âsqueeky-cleanâ (sorry) image than to do a more respectful treatment of him.
And yes, as others have said, copyright and the like apply whether your usage is for profit or not. If you arenât distributing your version, or performing it in public (for some definition of public), youâre probably safe under fair use. If not, then your choices are to go through the process of getting proper permissions from the rights holders, or to do a fairly straight cover version under mechanical license (minor tweaks of phrasing/'gender that donât significantly alter the songâs meaning are permitted under that).
It isnât clear what category contextual parody would fall under. (For example: "Iâm going to sing Rainbow Connection exactly as written⌠but whenever I say ârainbowâ I want you to think âVorlonâ.) Technically thatâs a straight cover performance; the parody is constructed by the listeners⌠but I think that becomes a matter of whose lawyer has bigger teeth, if someone wants to make an issue of it.
(Yes, I write songs occasionally. Yes, some of them are parodies. Yes, Iâve researched this.)
I think the problem is not so much the specifics of the GoldieBlox lawsuit, but the fact that the company preemptively sued the band in an attempt to make them look horrible and to give the company more publicity.
I am not a lawyer, merely a layman interested in this area (so Iâd welcome correction); but my impression is bringing a suit requesting declaratory judgement is the mechanism you have available if you think that you have a fair use defense; but cannot afford the consequences of being wrong if you continue to act as though you do. If you think that you do; but the court later finds that you do not, the penalties can rack up fast, which means that, if the rightsholder starts making noises in your direction, you pretty much either have to cave, have to have ironclad backup on your side, or have a very high tolerance for risk.
Iâm no fan of the fact that there is no venue (aside from a lawsuit) of just getting a legal opinion on an unsettled matter of law âIs this fair use or not?â; but my understanding is that there isnât. If, purely at their option, you were able to get a (binding) agreement from the rightsholder with your âfair useâ assertion, that would work; but if you want to get a legally solid clarification of the issue, and donât have the other partyâs agreement, requesting a declaratory judgement âagainstâ the other party is pretty much your option.
Itâs not pretty to see it come to a head like that; but (unless my understanding of the situation is very much mistaken) the specifics of the lawsuit are about as significant as they could reasonably be, in that this specific type of lawsuit is the mechanism by which you attempt to assert a fair use claim before taking further actions that you could be nailed to the wall for if that claim ends up not holding up.
Given all of that inherent risk, why would a small company like GoldieBlox even go near a copyrighted song, especially one put out by a group that has expressed a desire to remain distant from advertising, and would therefore almost definitely take issue with the use?
The only reasons I can think of are that either GoldieBlox did no research, and blindly went ahead with it, or they did so hoping to stir up controversy.
Oh, Iâd be essentially certain that they chose the song they did, and the plan of cutting against it, more or less entirely for its value in giving their ad additional punch (Iâd be less certain that they wanted matters to head in a legal direction, just because that can get risky and expensive fast); but âat least nominally subversive parody of very well recognized songâ definitely punches harder than âlicense or cover of some less well known song arguably in agreement with their message, played straightâ which, in turn, punches harder than âEh, give me something from âAnthemic Generica, vol. 23ââŚâ
If your judgement of their actions is, in part or in whole, based on whether they did it as an advertising stunt, Iâd judge them as though they did it as an advertising stunt(maybe somebody involved has a desperately twee story about reclaiming the Beastie Boys for his/her daughter, and thatâs cute and all; but Iâd doubt that it went to the point of âproduced and delivered as television advertisementâ for reasons other than its expected success).
Given how quickly they sued the Beastie Boys and the fact that it does not appear that GoldieBlox tried to negotiate with the band, what makes you assume that the company wanted to avoid a legal battle? If the company really wanted to avoid a court case, why didnât they try to get permission like Al Yankovic does? I know they based another commercial on Queenâs âWe Are The Championsâ, but I have not found any information regarding whether or not the company got a license first. I cannot rewatch the video right now, but I do not think it would be considered a parody so I assume the company would be required to get a license.
I read your response to my previous comment, but again, the lawsuit comes across less as a âcompany trying legally protect their fair use of a songâ and more âletâs try to create good publicity for the company and bad publicity for the bandâ.
Can we stop saying âthey sued the BBsâ as if theyâre asking them for money? They asked a judge for a ruling on the song as fair use, to pre-empt the lawsuit machine from getting rolling.
The Beastie Boys are defendants in a lawsuit, but we are not supposed to say that they are being sued?
From the lawsuit/filing/whatever you want to call it:
WHEREFORE Plaintiff seeks judgment awarding it the following relief:
a) An order declaring that Plaintiff does not infringe any valid copyright owned by Defendants relating to the song Girls;
b) An order declaring that any alleged use by Plaintiff of the song Girls in its parody video is privileged under, and protected by, the Fair Use Doctrine;
c) An order enjoining Defendants from asserting any alleged copyrights against Plaintiff in connection with the GoldieBlox Girls Parody Video;
d) An order awarding attorneysâ fees, costs, and expenses incurred in connection with this action to Plaintiff;
e) An order awarding such other and further relief as this Court deems just and proper.
Points D and E indicate to you that GoldieBlox is not looking for any money?
