What's Wrong With the Latest Beastie Boys Lawsuit

https://www.eff.org/deeplinks/2013/11/beastie-boys-goldieblox-fair-use-lawsuit

by guiambros • 13 years ago

30 48 13 years ago

guiambros• 13 years ago

TL;DR: Taken together, the factors favor fair use. Moreover, the video furthers the purposes of copyright. It serves the public interest by advancing political criticism and debate regarding sexist stereotypes about girls and engineering. What is more, it’s a classic example of growing the cultural commons by remaking existing cultural works to create new insights and expression. That kind of creativity what fair use is for. And it’s part of what made the Beastie Boys great.

On the merits, then, the fair use analysis is solid. But expect to hear this counterargument: that one of the most basic “copyrights” is the right to control how your work is used—including whether it is used at all. Proponents of this kind of claim will often invoke J.D. Salinger’s steadfast opposition to any adaptions of his works. But the argument forgets that every copyright set out in the Copyright Act is subject to numerous exceptions – including fair use. Copyright ≠ total control.

neumann• 13 years ago

That first paragraph highlights the problem with the EFF's analysis.

It is not in 'the public interest by advancing political criticism' if at the end you try and sell you shitty toy.

I would buy the argument it if it was broadcast as a non-profit campaign and at the end a shot 'sponsored by', but this is a commercial plain and simple.

fatman4• 13 years ago

I think it's an important point that the GoldieBlox video is directly attacking the message of the original song. To way oversimplify: Modifying someone else's copyrighted work to make a generic point = Satire, not fair use, not OK; Modifying someone else's copyrighted work to specifically contradict the message of that work = Parody, fair use, A-OK.

ams61102• 13 years ago

But for commercial purposes... I think that takes a lot of the argument away.

ISL• 13 years ago

Satire and parody are practiced by the Onion for commercial gain. Should/does that alter the protections afforded to such transformative works?

jasonlotito• 13 years ago

ironchef makes a comment below (https://news.ycombinator.com/item?id=6798749) that being commercial doesn't matter. Otherwise, every piece of fair use on YouTube could be taken down considering YouTube is a commercial site.

fatman4• 13 years ago

My statement was an oversimplification, but you're right, Commercial purpose would weigh against a finding of fair use in a part of the 4 factor balancing test. Does that take "a lot" of the argument away or a little? Depends on what the judge had for breakfast that day, I guess. In my head, the direct criticism of the original work is a stronger factor, but that may be based off my own fuzzy memory of the cases and pro-fair use biases. I guess I feel that criticism should be protected as not only federal common law fair use, but even more strongly as First Amendment speech - if I remember correctly that is as of yet an unanswered question in the caselaw.

fatman4• 13 years ago

The counter-example that has stuck with me is the novel "The Wind Done Gone": http://en.wikipedia.org/wiki/The_Wind_Done_Gone. It's Gone with the Wind, re-imagined from a slave's point of view - and a direct criticism of the work, published for profit and without permission. The Second Circuit (probably the biggest copyright circuit, thanks to NYC) ruled that there was at least enough fair use there to overturn a preliminary injunction. http://en.wikipedia.org/wiki/Suntrust_v._Houghton_Mifflin Then the case settled.

kevingadd• 13 years ago

I don't understand how GoldieBlox are positioned as the victims here when they were the ones to initiate a lawsuit and accuse the rightsholders of being bad actors. Getting a letter from a rightsholder when you use their work without permission for PROFIT is not exactly an unexpected turn of events.

If this were just some sort of educational or satirical video then I'd be more willing to be on their side about this, but it's obvious they're looking to sell product. If they're going to use someone else's work without permission to make money, they should be willing to face the consequences (or at least pay the normal royalties you pay when covering a song).

ganeumann• 13 years ago

If you send a letter to someone threatening them with legal action, they will often initiate legal action to have the court decide if your legal action would succeed. I don't know what the Beastie Boys said to GoldieBlox, but the EFF article mentions that GoldieBlox was worried that the Beastie Boys would initiate litigation right at the holiday season, leaving them without a commercial. GoldieBlox decided to ask a court to decide earlier.

There's nothing wrong with this. It does point out an interesting lesson, though: never explicitly threaten someone with legal action, they might very well take the opportunity to pre-emptively sue, and if you were just posturing you'll now be spending a lot of money on lawyers. (This is why letters that are pretty much threatening to sue will instead say something like "We trust you will stop injuring us. If you do not, we reserve all rights.")

fatman4• 13 years ago

This tactic is even more common in Patent law. If you get the jump on the would-be plantiff you get to pick the venue, and hopefully stay out of the Patent-holder rubber stamp that is the Eastern District of Texas.

camus2• 13 years ago

GoldieBox is a toy company right? so they are doing that ad for profit, i dont think the BB will lose their case. It's not fair use if it is commercial.

ironchef4• 13 years ago

"It's not fair use if it is commercial" <- that statement isn't true. See Campbell v. Acuff-Rose Music Inc as an example where parody (for profit) still won.

anigbrowl2• 13 years ago

You're on thin ice with that argument. Selling a parody of a creative work is commercial, but that's wholly different from presenting a commercial message for a separate product.

Imagine a TV advert for cosmetics or apparel that used 'Pretty woman' (even in parodic form or heavily transformed): this is a very different kind of commercial application. In your example the parodist is selling a new version of the song; in the example above a new version of the song is being used to sell something else. This is a classic example of where licensing is appropriate because any resulting commercial transactions will not be made by an audience on aesthetic grounds of preference for the new song, but by customers who wish to purchase a girl-themed construction toy.

I think your/the EFF's legal theory here is DOA and will be extremely surprised if GoldieBlox succeeds.

tedivm2• 13 years ago

I normally side with the EFF (and donate a ton of money), but this is clearly an advertisement. It's commercial. That's the whole reason they're being sued, because the Beastie Boys don't want their stuff being used for advertisements. The whole beginning of the blog post is trying to deflect that by talking about remixing, and by accusing the Beastie Boys of being bullies.

This part in particular bothered me-

But expect to hear this counterargument: that one of the most basic “copyrights” is the right to control how your work is used—including whether it is used at all. Proponents of this kind of claim will often invoke J.D. Salinger’s steadfast opposition to any adaptions of his works. But the argument forgets that every copyright set out in the Copyright Act is subject to numerous exceptions – including fair use. Copyright ≠ total control.

While the Copyright Act does have numerous exceptions, fair use explicitly takes into account whether something is commercial or not. Ignoring that is disingenuous at beast.

ironchef4• 13 years ago

I don't think it's ignoring that. Fair use for profit can still be legal. See Campbell v. Acuff-Rose Music Inc as an example.

pflats2• 13 years ago

But in that case, the commercial good is the parody song itself. 2 Live Crew didn't turn around and use that song in a commercial for women's depilatory products.

I don't think I've heard anyone argue that the song isn't fair use in and of itself. Using the parody song to advertise a tangentially related good is another story.

tedivm2• 13 years ago

I think they're trying to downplay it too much. This is a toy company showing girls playing with toys while singing about wanting more toys.

Yes, it does have a much better message than most- that girls should have more toys available than just things made of pink and dolls. But I'm not sure that pink lincoln logs is the way to do this ( http://www.goldieblox.com/collections/products ), and I do think it very likely that this video was done by a marketing department trying to get their name out there.

tptacek2• 13 years ago

They're not being sued. The band reached out to (one assumes) ask them not to use their material without authorization in a commercial, and the company sued them.

nitrogen• 13 years ago

From https://en.wikipedia.org/wiki/Declaratory_judgment:

  A declaratory judgment is typically requested when a party
  is threatened with a lawsuit but the lawsuit has not yet
  been filed...

IANAL, but if Goldieblox are seeking a declaratory judgment that what they're doing is okay, that's less severe than, and not the same thing as, suing Universal or The Beastie Boys for some kind of reward or injunction.

Still, the video clearly invokes the memory of The Beastie Boys' song to promote a product, giving the viewer the impression that Goldieblox is endorsed by The Beastie Boys. If it were my identity being appropriated by another company for advertising, I would not be okay with it either, no matter how progressive the product (and that's why I no longer review things via Google products, for example).

underwater• 13 years ago

That's really scummy of the EFF to phrase the title in a way that makes it seem like the Beastie Boys filed the suit.

vellum• 13 years ago

That's the whole reason they're being sued, because the Beastie Boys don't want their stuff being used for advertisements.

It's ironic that a corporation (mis)using their song helped them bootstrap their music careers. Back in '84, British Airways used their first hip-hop track, Cooky Puss, in a commercial. The Beasties sued, won $40k, and quit their day jobs.

mturmon3• 13 years ago

Logically irrelevant, but also a factor for me: the product, and the ad, are trying way too hard. I have a daughter in the target age range, and I found the ad to be repellent.

It's addressing itself to adults, not kids, for one thing. And it seems to be fighting yesterday's battles. The "pink is for girls" thing has been fought out for years now. Everyone who could be convinced has been convinced.

darkarmani• 13 years ago

And it seems to be fighting yesterday's battles. The "pink is for girls" thing has been fought out for years now. Everyone who could be convinced has been convinced.

I think this is completely untrue. Especially after seeing my nieces this past week. The more my daughter is exposed to the normalcy of colors other than pink the better.

mturmon3• 13 years ago

I felt like the video was taking the wrong path. It was accepting that pink is the normal for girls, and encouraging girls to rebel against pink. Even its appeal to rebellion was shallow and stereotyped.

There is no consideration of what the kid wants, just nagging them to be a certain way by buying the product. (My daughter is not now, nor has she ever been, a pinkophile, but if she was, I wouldn't nag her to be something else. ;-)

stavrianos• 13 years ago

It's a cultural battle. Subconscious mindshare is the name of the game. Whether people are or a can be convinced at a conscious level is more or less irrelevant- the impulses that go before rational thought are what count.

mturmon3• 13 years ago

"Subconscious mindshare is the name of the game."

That's why the reactive mentality of the ad was particularly uninspiring. Dissing pink is not edgy, brave, or memorable. It's been done, it's over already.

officemonkey2• 13 years ago

I think it's also a hoot that they are in contempt of pink yet all their products feature purples and golds. Every princess color _except_ pink.

http://www.goldieblox.com/collections/products

tptacek2• 13 years ago

This is an analysis that says companies with messages we "like" can use Calvin & Hobbes in their advertising, as long as they do it creatively. Gross.

InclinedPlane• 13 years ago

It's sad but so much of the law works that way in practice. And it's very hard to fix.

tedunangst• 13 years ago

It's a special case of a more general principle. Companies we like can do anything.

__pThrow• 13 years ago

that's my take on it too.

EFF is tipping their hat to agendas far beyond electronic freedom in saying they endorse this use.

defen• 13 years ago

Agreed. This analysis was so weak that it gives me hope that GoldieBlox will lose their lawsuit.

Also, can someone explain how "highly transformative" is defined? Does changing some of the lyrics and dropping the drum beat count as "highly transformative"?

desireco42• 13 years ago

Thank you HN for your response, I totally expected to open comments and see people siding with GoldieBlox here, like I would normally side with most things EFF do.

I think GoldieBlox made this suit to promote themselves, so it looks like a stunt to me. I am surprised that EFF jumped the gun, but then, it really doesn't make me think any less of them.

scosman• 13 years ago

Mike D & Ad-Rock respond: http://www.nastylittleman.com/2013/11/25/open-letter-from-be...

Imagenuity• 13 years ago

A lawsuit = massive attention, the kind advertising doesn't buy.

evan_• 13 years ago

If I'd known it was this easy I would have released a commercial that changes the words to "(I Can't Get No) Satisfaction" to be about my company, and sued the Rolling Stones.

trekky1700• 13 years ago

Did Weird Al have to get permission for his song parodies? This is essentially a parody, though I don't know how the law applies differently if it's made for a commercial. It'll be interesting to see how this plays out. Anyone know how it legally differs from other "same beat, different lyrics" songs?

scrabble• 13 years ago

Does he have to? Most people say no.

But he doesn't publish a parody without permission. He makes sure he has permission before he does any of them.

trololol2• 13 years ago

the eff article is sexist, i don't think i will be donating to or praise eff anymore.

(from the article):

"GoldieBlox could have made a less intricate machine, of course, but that would have undermined the purpose of showing the amazing creative engineering girls can do"

GIRLS?! i think most intelligent adults prefer the terms female or women... do grown men refer to themselves as/idetify with the term "boy engineers"? no i didn't think so.

poorly written article by someone trying too hard but missing key points in gender equality/social construction.

eff please be better than this.

downer96• 13 years ago

This is an interesting new wrinkle for me, when it comes to intellectual property. In this case the benevolent anarchy of the old axiom "information wants to be free" rings less true.

This one feels dangerously close to the classic power struggle between underdog music artists and the rotten record labels that have a habit of steam-rolling over their creative sensibilities so they can bastardize an artistic work in the name of selling more spaghetti sauce.

This whole intellectual property thing has always, always, ALWAYS been about the individual's fight against the slippery oligarchy of private companies and corporations. It's almost impossible to paint a corporation as the poor, defenseless victim. The Beastie Boys, in this respect are more individualistic than the company.

In this case the Beastie Boys are not sell-outs. Their position rings truest.

It's funny to see this slight change in power differential augment the perception of the conflict. Does this mean that information wants to be free, if and only if it's being freed into the hands of a private individual and not a faceless profiteering company? Yeah, kind of.

Sorry, EFF. You are pretty much entirely wrong on this one.

What's Wrong With the Latest Beastie Boys Lawsuit

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