What's Wrong With the Latest Beastie Boys Lawsuit
eff.org
eff.org
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.
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.
It boils down to this: the Beastie Boys song had more worth than an original song they wrote themselves. In addition to the actual song (which is a snappy professional-grade pop tune) they appeared to be trading on the Beastie Boys name in promoting the video.
With limited exceptions, if you're using the creating works of others for your commercial benefit, you should pay the artist. Full stop.
To me (not a lawyer) creating a commercial parody should not disqualify a work from being fair use per se. Campbell clearly backs that up.
The copyright act says the law should analyse:
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"
The Girls parody is for a commercial nature, as was Pretty Woman. But the purpose and character of them are different - Pretty Woman was created as a piece of art that was created to parody Oh, Pretty Woman. The Girls parody was created to be the soundtrack of an advertisement for Goldiblocks.
There seems to be a slippery slope: should advertisers get free access to the oeuvre of popular music to use without cost, provided they change the nature of the piece? That would seemingly break "(4) the effect of the use upon the potential market for or value of the copyrighted work."
But that's just my gut feeling. I'm obviously not an expert here.
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.
they just want profit like the rest of the capitalist world. beastie boys are the victim here, a capitalist enterprise stole their track. kill it with fire.
A declaratory judgment is typically requested when a party
is threatened with a lawsuit but the lawsuit has not yet
been filed...
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).
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.
EFF is tipping their hat to agendas far beyond electronic freedom in saying they endorse this use.
Also, can someone explain how "highly transformative" is defined? Does changing some of the lyrics and dropping the drum beat count as "highly transformative"?
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.
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.
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. ;-)
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.
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.
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.
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.
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).
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.")
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.
But he doesn't publish a parody without permission. He makes sure he has permission before he does any of them.
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.
I do agree that the harm that would be suffered by the band/publisher is negligible, but 'they can afford it' is a weak rationale; the band/label are in a much stronger position on this prong because they've consistently refused to license their work for commercial purposes, so they can argue that this represents brand dilution rather than the relatively paltry cost of a temporary license, leaving the door open for a finding of more significant economic damages. Now if they counter sue Goldie Blocks the court might not look too favorably on it, but as it is GB's suit IMHO amounts to little more than a temper tantrum about the company's inability to get what it wants. Of course, the firm may consider the publicity value to be greater than the legal costs.
(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.