So a startup company that wants to encourage little girls to get into science and engineering has used a parody of 1980’s Beastie Boy’s song Girls to market one of their products. I think the ad is even one that’s scheduled for the Super Bowl.
The problem is that although song parodies are considered fair use, the band has a well known policy of not allowing any of its music to be used for commercial purposes. What’s more, it’s not really clear if that fair use doctrine extends to commercial use.
I think this does fall under fair use, so the Beastie Boys really can’t stop it. Having said that, I’m surprised they would want to. This seems like exactly the kind of use that they could get behind. I wonder if the band was even consulted or if the call was an automatic response from their legal group.
It wasn’t clear to me from reading, but they are not using the actual Beastie Boys audio, except for a short clip at the start. I think that clip would fall under fair use.
It doesn’t seem like using the complete, unaltered lyrics would fall under fair use, though (I didn’t listen to more than a half-minute of the song, so maybe they changed them? Can anyone confirm or deny? The part I heard sounded like the original lyrics, sung by little girls.)
I don’t think the courts are going to distinguish between the type of commercial use. When you’re selling clubbed baby seals or club soda, the rules will have to be the same.
Personally I think they would have had a better case if they hadn’t used the song in it’s entirety and certainly they should have tried to get the band’s permission. But the problem there is that the one member who is now deceased had a provision in his will that none of the bands music should ever be used for commercial purposes. So unless they planned on doing a seance of something, I don’t really see how they ever could have gotten permission anyway.
Four factors are evaluated when determining whether it is fair use and a legitimate parody. Commercial benefit is one of them but its existence does not make it presumptively unfair use, you still have to evaluate the other factors.
I would think this would fall more on the fair use side.
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
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This is how I wish the conversation would have gone:
GoldieBlox: “We’re promoting our project to empower girls in the fields of science in technology. We’d like to use a parody of your song ‘Girls’ to promote our company in a commercial.”
Beastie Boys: “Wow, we’re totally in to your message and your products, but unfortunately we’ve decided not to let any of our music be used in a commercial context and we stand by that decision. Please give us more information on how we might become investors in your company, however.”
GB: “Aw, shucks. You’re missing a great opportunity but we respect your rights as artists to protect your work as such.”
– end –
The way they went about it, no matter how legal, leaves a bad taste in my mouth for sure. I have 2 nieces and would love to start following GoldieBlox but…fuck 'em.
Well, I can say that if the goldieblox ad gets taken down, the potential market for any Beastie Boys music vis a vis my wallet will be severely and negatively impacted.
Thanks. That was mentioned in the news report I saw this morning but in defense of the company, I’m not really sure this could have been avoided given the very clear instructions in the deceased band member’s (Adam Yauch) estate.
I don’t agree. (While I agree it might ultimately be fair use; I don’t agree that changing all the words except “Girl,” while keeping the precise music, is something that compels a finding of fair use.)
As mentioned, parody is not carte blanche to violate copyright. It’s a very limited use.
Calling something parody doesn’t make it parody. The commercial the OP refers to is in no way an actual parody. The intent isn’t to make fun of the original.
From my American Heritage computer dictionary for “parody”:
“A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.”
Yes and no according to the Time article. It seems to depend mainly on whether or not the use is commercial but that’s just my interpretation based on this quote:
No, deltasigma, it does not turn primarily on commercial use. There are four factors to evaluate, and commercial use is part of one of those four. They are codified at 17 U.S.C. § 107 et seq.
If you have trouble looking them up, Folly’s post 7 captures the essence quite nicely.
Even the quote you offer acknowledges the existence of other factors: “Whether or not a work is used for a commercial purpose has been part of the fair use analysis for a very long time.” (emphasis added)
Changing all the words, but not the music, goes to 17 U.S.C. § 107(3): “[T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole…” It has nothing to do with 17 U.S.C. § 107(1), “[T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes…”
I think the Beastie Boys are right in this case; GoldieBlox isn’t just using the song to promote science and engineering to young women but is actually trying to sell them stuff.
The funny thing is that I best remember the Beastie Boys for the song “(You Gotta) Fight for Your Right (To Party!)”, which seemed like a frat-party anthem (although the song was actually intended as parody).
Bricker: Jesus dude, chill. Did you read the part where I said ‘that’s just my interpretation based on this quote?’ If not why don’t you try reading it again? M’kay?
And I’m pointing that your interpretation, based on the quote, is in error, both when compared to the actual law, and even when based on the quote from which it supposedly derived. Your interpretation was based on the quote, but somehow failed to perceive the words “part of” in the quoted material.