November 20, 2013

Be The 4 Millionth Person To See This Awesome Goldieblox Commercial

I heartily endorse this event and/or product.

Which turn out to be Goldie Blox building toys and books. How are these? Would boys like these? [amazon]

A COUPLE OF DAYS LATER UPDATE: WTF you have got to be kidding me, apparently the Beastie Boys have sent a cease & desist to GoldieBlox, claiming copyright infringement for the rewritten version of "Girls." The startup has filed a lawsuit seeking declaratory relief, basically a pre-emptive court ruling that their remake of the song is fair use. The Hollywood Reporter article makes the entire thing about parody, which, sure, but parody is not the only case for fair use. I'd think that a solid criticism argument could be made here; GoldieBlox has used the Beastie Boys' sexist anthem precisely because it's a sexist anthem of this generation of parents, and they've flipped it completely. It's now a song about empowerment and equality, not the stupid stereotype antics of the original. The criticism is only stronger because of the form, and the recognizability of the song.

And actually, that's what GoldieBlox is arguing in their suit:

GoldieBloxcreated its parody video specifically to comment on the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage inactivities that challenge their intellect, particularly in the fields of science, technology,engineering and math. The GoldieBlox Girls Parody Video has gone viral on the Internet, and has been recognized by the press and the public as a parody and criticism of the original song. [emphasis added]

In any case, it takes a lot of corporate balls for Universal Music et al to file a copyright infringement claim on behalf of a band whose career was founded on sampling. I say bring it. [And follow Andy Baio, who knows his way around fair use conflicts, for updates.]

UPDATE well, the ambiguity mentioned in the comments is gone, and ccer is right: the Beastie Boys' complaint to Goldieblox is over the use of their music in a commercial, which they have long opposed. So what remains is the determination of a commercial as fair use, which is why Goldieblox is pursuing an affirmative court decision. Or as the Beastie Boys put it in their letter, now published at NYT,

When we tried to simply ask how and why our song "Girls" had been used in your ad without our permission, YOU sued US.
So now a judge will decide if what Goldieblox has made is, in fact, still their song.

UPDATE UPDATE

7 Comments

The Beastie Boys are suing because they refuse to let any of their music be used in advertising...even if it's for a girl-power toy. That's missing in your explanation above. To me, that changes things.

It is a good point, and I think it's clear that the Goldieblox use is most definitely a commercial. As much as I respect the Beastie Boys for not licensing their music for commercials, also don't think their actual objections are clear yet in this case. Goldieblox's court finding is vague about how the BB people have reacted, or what their demands, if any, are.Still, I think you're right to assume that they don't want their music in a commercial in any form.

That doesn't change the question of whether Goldieblox has a right to do what they did. It's possible that they still have a fair use claim based on criticism, comment, and/or parody. I'm sure they think, or t Lear that they'll argue, that their entire company has a social mission that takes issue with the Beastie Boys song and the culture it represents. How successful such a fair use claim is is, of course, TBD. But I don't doubt they'll be waving that flag all through the Holiday shopping season, at least.

Man, that "we are more than just princess-maids" line in the Goldieblox ad seems like a strong argument in the "transformative" camp. Also: PR value of a little startup for girls being sued by UM/BB=high. I'm sure their Indegogo legal defense fund will plump up nicely.

Courts examining fair use under the copyright act examine four factors, and the Hollywood Reporter article discusses them well. Even works that are used for purposes of criticism or comment are subject to examination through the lens of these four factors.

If this had been just a YouTube video with the reworked song and girls setting up a Rube Goldberg contraption, I suspect that a court would be likely to find that it was a fair use. But it isn't -- it is an advertisement for a product, the very definition of a commercial use. I think GB will lose on this alone.

[An aside -- A factor that the article doesn't mention is the effect the use will have on the potential market for the work. Given that the Beastie Boys don't currently allow the use of their works in advertising, one could argue that there is no market at all. However, I think I might argue that they have a vast untapped market (how much more were the Beatles paid for "Revolution," given that it was the first use of their music in a commercial?) that would be adversely affected by this use.]

So yeah, maybe there's no such thing as bad publicity. I thought that this would be an awesome thing for my daughters, I showed it to them, and I reposted the video. But I am disappointed in the company. And if they care so little for the rights of millionaire artists and publishing companies that have the wherewithal to fight back, how do I know they will care about the safety of the girls using their toys?

Let me guess, they are members of the JPMA?

Isn't the ovearching rule of copyright violation, "does this work subtract from the earning potential of the copyright holder?" I mean, isn't the very heart of copyright the dictum that I can't put my name on your work and sell it as mine? It's from that notion that Fair Use is derived.

I'd think this would be a very interesting case to bring to the Supreme Court. Would a strict constitutionalist judge want to respect the original legislative intent, or look at it from the business point of view?

Isn't the ovearching rule of copyright violation, "does this work subtract from the earning potential of the copyright holder?" I mean, isn't the very heart of copyright the dictum that I can't put my name on your work and sell it as mine? It's from that notion that Fair Use is derived.

I'd think this would be a very interesting case to bring to the Supreme Court. Would a strict constitutionalist judge want to respect the original legislative intent, or look at it from the business point of view?

Goldieblox Hanukkah Update: So my brother got my daughter the Goldieblox spinning machine toy for Hanukkah. She already has it from her birthday so we went to the website to look at other GoldieBlox toys we could get for exchange. Well, there really aren't any. There's the "Collector's" edition of the spinning machine which is the same as the current edition but in the packaging that was available way back in June but it's sold out. There's a new toy that isn't available until later in December but it appears to be a Tinker Toy rip-off (which would be an improvement over the spinning machine). There are also some Goldieblox branded clothing items. The whole thing is a marketing exercise. The controversy adds to the sizzle but there is no steak to be found. It's hard to say that we need to expose this brand for what it is while we're still in the holiday shopping season but it seems like exposure is all they're looking for. Maybe the best thing to do is to simply ignore them, which is what many seem to be doing anyway.

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