Can someone who knows more about US law than me (I’m from the UK) explain what the Fair Use argument was in this case?
I understand that Fair Use protects parody, so if I change the lyrics of a U2 song to take the piss out of Bono then I’m safe. But as far as I understand it Goldiblox wasn’t parodying the Beastie Boys or their song (i.e. the video wasn’t about the Beatie Boys), they were simply using the music with different lyrics in a commercial.
Am I missing another definition of Fair Use?
Nope, you’re not missing anything. The problem with fair use is that there is no “definition” there is only a principle, which is applied somewhat irregularly. Parodies intended as commentary or criticism of the actual work or a public figure are more on the protected end, but as a work moves more in to a commercial product or advertising for an unrelated product, it’s less protected. But there are exceptions aplenty. Suffice to say that if you are selling a product that itself is a parody or with a parody to advertise, you are probably going to be sued and you may or may not win.
Now as for this settlement, I think it’s a great solution - it had teeth and is a substantial amount of money, but as it’s only a portion of profits up to a million, it doesn’t really impact the companies growth. All around, a very fair settlement. The ad was awesome, but it was infringing, and this is the right solution.
I wouldn’t be so sure…
If there’s anyone who now knows about rights clearing issues, its the BEAST-IE BOYS. ahem Sorry, I got carried away there.
Heh, who’d have thunk it.
Although that looks more like trademark law than copyright, does Fair Use apply to TM in the same way?
Thanks, I think that makes it a bit clearer. I’ve seen a lot of commentors simply screaming “Fair Use!!!” as if it’s an excuse for everything.
It reminds me of the Penny Arcade case. People kept arguing it was Fair Use, but the strip wasn’t parodying Strawberry Shortcake, it was parodying American McGee. Strawberry Shortcake could have been replaced by any other young female character and the target of the parody would have been unchanged. The same argument seems to apply here, although Goldiblox have the added issue of it being used for a commercial.
(EDIT: Not a Laywer!)
I don’t think it does, but Trademarks are a lot more limited than copyright. Trademark infringement only occurs if there is a likelihood that someone may think you are representing the company. So if you sell a beverage with the coca-cola trademark on it, they can sue you because they can say you were trying to pass it off as coke.
On the other hand, the red and blue swirl on the cover of negativland’s Dispepsi album was not trademark infringement (although the band was worried they were going to be sued at the time) because even though someone could easily associate it with the Pepsi trademark, no reasonable person could think that it was actually a Pepsi product - created or endorsed by the company. (I don’t think the standard is actually “reasonable person” with trademarks, on QI they mentioned it was actually a “moron in a hurry” but that might be British)
Anyway, as long as there is no way someone could think that you are actually representing or being endorsed by the trademark holder trademarks are fair game.
Man, considering how many artists the Beastie Boys have “borrowed” from over the years, this seems like a dick move.
@noneeeed For more on Fair Use, check out this CC licensed comic book from Duke University’s Center for the Study of the Public Domain:
http://web.law.duke.edu/cspd/comics/
Cheers, saved for later 
I don’t think getting upset about someone using your material in a commercial against the wishes of your recently deceased friend is a dick move. I don’t think sending someone a letter asking them why they didn’t ask for permission is a dick move. I don’t think that getting sued by that person is a dick move. I don’t think meeting with someone who used that song in their ad without realizing that it was an emotional subject and mutually deciding that everyone would be satisfied if they donated some money to a charity for a cause they ostensibly support is a dick move.
The Beastie Boys are not at all hypocrites on this issue. In the past they have released the master tracks for many of their recordings so that people could sample and remix them however they wanted. They just don’t want it to be used in ads.
I’m a Beastie Boys fan and was aware of their strong feelings about never using their songs in commercials - so when I heard that Goldibox commerical I thought, wow, the Beasties must really support this because I’ve never heard them allow their songs in a commercial. It may be that reaction - the fact that anytime you hear a song in a commercial, the artist has expressly said “yes, you can use that, I am in effect endorsing it” - that caused them to respond to strongly.
The BB do have a huge history of “borrowing” beats to use in their songs, and I have no idea what their history is of allowing other artists to use their beats, or how they’ve responded when other artists have used them without asking, but to me, hearing a Beastie Boy riff in a song and hearing one in a commercial are two completely different things. One I’d interpret as an audio reference or homage, the other… just trying to sell a product.
Great settlement. The Beasties prevent a stupid, greedy bullshit-liberal company from peddling their crap under the guise of social justice, and the money goes to something worthwhile instead of their pockets (which would have been greedy.) Hooray, for once!
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