GoldieBlox and the Beastie Boys: Someone’s Been Using My Song

by Winthrop & Weinstine, P.A.
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Growing up in the ’80s, I have fond memories of music, TV shows, and toys from that era, like Transformers, Michael Jackson, Reading Rainbow with LeVar Burton, My Buddy & Kid Sister, Glow Worms, hair bands, He-Man, Square One, and rap music from acts like the Beastie Boys.  The ’80s were a fabulous time.  If you need to take a few moments to wax nostalgic on the ’80s, you should check out this and this.

What was lacking in the ’80s though, at least for this girl just wantin’ to have fun, were construction-type toys geared to young girls.  I certainly was more interested in playing with LEGOs, trucks, and Transformers than with Barbies, Disney princesses, or toting around a doll in a stroller.

Last year, a friend sent me an email simply titled “awesome” that included a link to a Kickstarter campaign for a toy construction kit geared to girls called GoldieBlox.  It struck a nerve with my inner child; this was exactly what was missing from my toy box as a kid.  Nothing screamed “tomboy.”  It was smart, graceful, and colorful, and it told a story.  It was like Angelina Ballerina on steroids.

However, GoldieBlox recently got into a bit of a tiff with the Boys.  The Beastie Boys, that is.  In a genius ad featuring a Rube Goldberg machine, the GoldieBlox team deftly tears down stereotypes regarding toys for girls with their own version of The Beastie Boys’ song “Girls”.

Click here for video.

“Not so fast,” said the Beastie Boys.  They reportedly sent a letter to the GoldieBlox team claiming the ad infringed on their copyright in the song.   Probably assuming public opinion would be on their side, GoldieBlox appeared to have promptly responded by filing a declaratory judgment action, asserting that their ad did not infringe the Beastie Boys’ copyright because it was a parody.  Courts consider four factors in determining whether a use of a copyrighted song is a fair use: (1) the purpose and character of the use, including whether the use has a commercial purpose; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  Although this was an advertisement for GoldieBlox that may have had a commercial purpose, it still likely qualified as a fair use as a parody because of its critique on gender stereotypes.  The Supreme Court previously has held in Campbell v. Acuff-Rose Music that a parody’s commercial value is only one factor and determined that 2 Live Crew’s “Oh, Pretty Woman” did not infringe Roy Orbison’s “Pretty Woman” song based on the other factors.

Unfortunately, the GoldieBlox dispute with the three rappers dispute won’t be going the distance.  In view of the late Adam Yauch’s request in his will that his songs never be used for a commercial purpose, the GoldieBlox team pulled the ad.

Interestingly, Queen didn’t seem to have a problem with GoldieBlox’s “We Are the Champions” ad – at least not publicly or at least not until the Beastie Boys’ controversy gained so much media traction.  Like the “Girls” ad, it is no longer available on GoldieBlox’s website.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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