Sunday, November 24, 2013

GoldieBlox Sues Beastie Boys for Declaratory Judgment of Non-Infringement

Earlier this week, a new product out on Kickstarter called GoldieBlox - a toy aimed at engaging young girls in engineering - made a pretty brilliant music video as an advertisement. The video features a parody of the song "Girls" by the Beastie Boys:

As reported by TechDirt:
The whole point is to mock the message of the original song, with its famous refrain: "Girls - to do the dishes; Girls - to clean up my room; Girls - to do the laundry; Girls - and in the bathroom; Girls - that's all I really want is girls." The new one switches it to: Girls - to build the spaceship; Girls - to code the new app; Girls - to grow up knowing; That they can engineer that; Girls - That’s all we really need is Girls." The point is pretty clear. Parody the original song to highlight how ridiculous that stereotypical image of girls is -- and, of course, highlight how the kinds of toys that GoldieBlox makes can be useful in learning. 
I'd like to reference, once again, what is likely one of the controlling case in this instance - the famous Campbell v. Acuff-Rose. Centrally, in that case, 2 Live Crew sampled Roy Orbison's "Pretty Woman" in a highly parodic fashion. The Supreme Court performed a fair use analysis, which has the following four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Court relied heavily on factor four in remanding the case to a lower court to make a better fair use determination. Specifically, the Court determined that a hip-hop parody of a country song would likely have negligible effect on the market for the original song. The lower court, however, basically glossed this analysis in finding for infringement. The case was sent back down, and it was settled, likely because Orbison knew he was fighting a losing battle.

I genuinely cannot conceive of a negative market influence on the original Beastie Boys song as a result of the GoldieBlox remake. That, in addition to the fact that this GoldieBlox is explicitly an educational toy should weigh very heavily in favor of GoldieBlox.

The Beastie Boys' lawyers would be wise to very, very quickly issue a sincere apology, withdraw their threat, offer a zero cost royalty, and make a contribution to the GoldieBlox kickstarter. Either that or come off looking like a bunch of misogynist bullies - and hypocrites, as they are still defending a copyright infringment lawsuit over that same album. I very, very sincerely hope that the original threat letter sent to GoldieBlox was the result of an overzealous (and clueless) lawyer acting without approval from the band members - because if the band members were involved, well, that could conceivably have a market impact on the Beastie Boys, and a very negative one at that.

You can read the complaint here. Note that GoldieBlox is represented by Orrick, who are not to be trifled with, and they have requested a jury trial. I cannot imagine trying to argue to a jury that GoldieBlox was not a fair use of Girls, and I would certainly have a panic attack when the lyrics comparison charts came out:


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