GoldieBlox and the Three Boys

*I have to consider MCA still a part of all this.

If I were to ask you, “What is the intended purpose of U.S. copyright law?,” what would your answer be?  Based on your response, I’ll bet I could predict pretty accurately your position in the GoldieBlox/Beastie Boys dispute – whether you think GoldieBlox “stole” the Boys’ song “Girls” or that the Beastie Boys are just whining.

What’s Going On 

In case you’ve missed the entertainment news headlines of the past few days, GoldieBlox, a company making construction-tool toys targeted for girls, and the Beastie Boys, the iconic hip-hop group, are in the midst of a copyright dispute over the song “Girls.”  GoldieBlox rewrote the originally misogynistic lyrics and used the rewritten song as the basis for a music-video commercial featuring three young girls building a Rube Goldberg contraption.

To give an idea of the difference between the original and the GoldieBlox version, the original final stanza of:

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
Two at a time I want girls
With new wave hairdos I want girls
I ought to whip out my girls, girls, girls, girls, girls!

was replaced with:

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.
To bring us up to speed it’s Girls.
Our opportunity is Girls.
Don’t underestimate Girls.

The video has gone viral online and is one of the four finalists in Intuit’s Small Business, Big Game competition for small business commercials.

These are the facts as we know them.  From here on, it’s all about she-said/he-said, legal analysis, and your perception of the ultimate role of copyright law.

The Beasties say that although they support GoldieBlox’s mission “to disrupt the pink aisle and inspire the future generation of female engineers,” they do not support anyone’s use of their music in advertisements.  GoldieBlox claims that the Boys’ lawyers have threatened GoldieBlox by claiming its unauthorized use of the music constitutes copyright infringement.  So GoldieBlox filed suit, requesting a California court to grant declaratory judgment* clarifying that its use of the song “Girls” is allowed under the law of fair use.

* An action for “declaratory judgment” in copyright disputes, uncommon but not rare, is a pre-emptive move taken by someone accused of copyright infringement to head-off an infringement lawsuit.  Before the copyright owner can file suit, the would-be defendant files, asking the court to deem its accused use to not be infringing.  If the court agrees, the copyright owner would have no basis for filing suit alleging infringement.

Once the action for declaratory judgment was filed, the cyberworld and traditional news services alike exploded.  The issue has become extremely controversial amongst commentators, with most sentiment in favor of the Beastie Boys, and much of that strongly so.

So what was GoldieBlox thinking?!

Why the Goal of Copyright Law Determines Who’s Right

I began this entry by asking what you think the purpose, or goal, of copyright law is.  If you are like the majority of people I talk to about copyright, your answer would be some version of “to protect the rights of authors” or “to give copyright owners the right to make money off of their creations.”  After participating in one of my copyright workshops, they learn not only that those answers are wrong, but, more importantly, why.

The U.S. Constitution provides the basis for copyright law.  It says that Congress may make laws “to promote the progress of science and the useful arts.”  The purpose of copyright law, in other words, is to encourage the creation of new works.

The Constitution also lays the foundation for how our law should go about doing this:  By giving “exclusive” rights to creators while at the same time placing limits on those rights.  We grant to copyright owners* the right to control the use of their works as an incentive for creating new works.  That makes sense to most people.  But what we often don’t think about is the second prong of the means to achieving the Constitutional goal of copyright law.

*As a side note here, note that in the modern world, the majority of copyrights being commercially exploited are owned not by the human creators, but by corporate entities, such as publishers, movie studios, or recording companies.

We place limits on an owner’s rights so that others can use and build upon their works for the purpose of creating new works.  As Supreme Court Justice Story said, almost 170 years ago:  “in truth, in literature, in science and in art, there are, and can be, few, if any, things, which … are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”

One of the most important limits placed on a copyright owner’s rights is fair use (Section 106 of the Copyright Act).  Fair use is a flexible tool whose purpose is to ensure that uses which would otherwise constitute copyright infringement be allowed if doing so would promote the purpose of copyright law more than would not allowing the use.  See The Bare Bones of Fair Use for a brief, readable explanation of fair use.

What GoldieBlox was Thinking

Apparently, GoldieBlox was thinking that its use of the song “Girls” would be considered a parody.  Parodies are, in fair use terms, transformative works, and as such, are often seen by courts as shining examples of fair use.  GoldieBlox was probably thinking that its use looks an awful lot like 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman,” which the Supreme Court unanimously found to be a fair use in 1994.  At first glance, that is understandable.  However, as several legal wonks have pointed out, the nature of the song “Girls” could blow the comparison, and thus GoldieBlox’s case, entirely out of the water.

I disagree.  I believe GoldieBlox still has a solid, if not strong, argument for parody and fair use.  I will try to explain briefly and without going too wonk-y.

In the 2 Live Crew case, the parody was a social commentary on the idyllic “white-bread” original song, “remind[ing] us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance.”  (It can be fun to read the Court’s sometimes stuffy manner of addressing topics like hookers and rap music.)

In its court documents, GoldieBlox says:

In the lyrics of the Beastie Boys’ song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song[,]…celebrating the many capabilities of girls … exactly the opposite of the message of the original. 

However, this is true only if “Girls” is taken on face value… which I, for one, have never done.  And this is the basis for many legal commentators’ argument that GoldieBlox’s use cannot be fair use.  The Beastie Boys’ original, they say, was itself a satire, a joke, not meant to be taken seriously.  GoldieBlox, they argue, is making the same statement as did the original; they are not “adding something new,” so their use is not transformative and thus not fair use.

I strongly disagree with this analysis for two reasons: (1) It is quite questionable whether those commentators are correct; and (2) The transformative use question is only part of the fair use analysis.

I have read a lot of opinions about this situation in the past few days.  There is no doubt that Beastie Boys fans and lawyers alike disagree on whether the Boys originally intended “Girls” to be a satire.  For example, in a 2012 tribute to MCA (Adam Yauch) upon his death, Jessica Valenti talks about the Beastie Boys’ “remarkable and emotional” “feminist turnaround.”

Mary Elizabeth Williams, writing in Salon about the GoldieBlox case (in which she supports the Beastie Boys, though based on moral reasons, not legal), explains the disagreement over the original intention of the song “Girls” well when she says:

I remember never finding the song “Girls” anything but hilarious, though I recognize now that our amusement came from a place of unique privilege. There we girls were, living independently, getting educations, with nobody to tell us to “do the dishes, to clean up my room, to do the laundry.”

She recognized that her understanding of the song was, like her “place of unique privilege,” not universal.

She also notes that the Boys have “apologized for [“Girls”] and dropped it from their live act years ago” – evidence that the Boys may not have originally intended the song as a satire.

So who decides whether a work is a satire or a parody – the creator of the work, or the audience listening to it?  Either way, determination of whether the original “Girls” is a satire is murky at best.

But that is only one factor in the fair use analysis.

The other factor worth discussing here is the fourth: effect of the use on the potential market for the work.  It is hard to imagine that the GoldieBlox use would adversely effect sales of the original.  GoldieBlox has not released it as a song apart from the commercial in the first place.  Its use could even drive listeners to purchase the original, especially those who did not previously know the original.

We also have to consider the market for the use that GoldieBlox is actually making – licensing the song for use in a commercial.  The Beastie Boys cannot win on this factor, either.  The very reason they purport to oppose GoldieBlox’s use is that they do not license their music for use in commercials.  So no marketplace exists representing GoldieBlox’s use.  (The 2 Live Crew Court noted that “[t]he market for potential derivative uses includes only those that creators of original works would … develop or license others to develop.”)

Who Wins?

GoldieBlox should win its fair use argument.  Whether the first factor favors fair use depends largely on whether we consider GoldieBlox’s use to be a parody, a difficult situation, as described above.  Given the difficulty, and based on what we know now (that is, without the discovery process of a trial), I would argue that the first factor (purpose and character of the use) either favors fair use or should be considered neutral, because of the lack of clarity.  The second factor (nature of the work used) disfavors fair use but is seldom given heavy weight and, in the words of the Supreme Court, is not “ever likely to help much” in cases of parody.  The third factor (amount and substantiality of the portion used) also pends, to some extent, on whether the use is considered parody.  I would argue that, even if not a parody, the use relies on the public’s recognition of the original.  Perhaps GoldieBlox took too much, but it needed to take a significant amount of the work, including its “heart,” to make its point.  The final factor, as explained above, clearly favors fair use.

Unfortunately, it seems that, legal arguments aside, GoldieBlox is losing on the public opinion front.

NOTE:  Please see updated entry on this case, following its progress.