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The Beastie Boys are rightfully irked. Never, in the history of their group, have they ever agreed to allow the use of their music in advertising. In fact, their late member, Adam Yauch, stated in his will that none of the group's music ever should be.
And yet, we have the GoldiBlox "Girls" parody, a delightful, empowering tune that counters the misogynistic tone of the original. ("Girls - to do the dishes, Girls - to clean up my room, Girls - to do the laundry ...")
It goes against Yaunch's will, as it is a commercial for girls' educational toys. Yet, it's almost certainly fair use. And in the real twist, the Beastie Boys didn't initiate the court case -- the toymaker did, reports The Hollywood Reporter.
Fair Use, Commercial or Not
The legal test for fair use may be familiar to you by now. It considers, in a balancing test, the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect upon the market of the original work.
The song is an obvious parody, only uses the song in part (the company even redid the beat behind the lyrics), and it should have limited effect upon the song's decades-old market (arguably, it might even renew interest in the song, which has likely faded from most listeners' memories).
The only question is, what about the commercial aspect. As Ken White at Popehat points out, the Supreme Court has already answered that question. In 1994, the court addressed 2 Live Crew's "Oh, Pretty Woman," a parody of Roy Orbison's classic "Pretty Woman."
In Campbell v. ACUFF-Rose Music, court noted that commerciality isn't determinative, nor does it create a presumption of infringement:
"If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities 'are generally conducted for profit in this country.'" (citations omitted)
And the amount of transformation matters too:
"It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. ... This is not a case, then, where 'a substantial portion' of the parody itself is composed of a 'verbatim' copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists."
And yes, the Goldiblox parody varies greatly from the original, sharing only the recognizable "GIRLS" shout at the beginning of each line, and the familiar musical underpinnings.
Beastie Boys Didn't Sue
Despite their dismay over their music appearing in a commercial, the musicians weren't behind the litigation. As they noted today in a publicly-released letter, while they were "very impressed by the creativity and the message behind [the] ad," and "strongly support empowering young girls," they reached out to GoldiBlox to find out how and why their song ended up in an ad -- and were sued in response.
GoldiBlox is seeking a declaratory relief, hoping that the courts will find that their parody, as a matter of law, is protected fair use, despite its commercial context. If the law is as clear as we think it is, they may succeed.