You Gotta Fight For Your Right To Fair Use

by Greenberg Glusker Fields Claman & Machtinger LLP

If you’ve got a Facebook account, the following video has probably made an appearance or two (or twenty) in your status feed last month:

Please see link for video.

Launched by toy company GoldieBlox, Inc., an aspiring retailer of science-based toys aimed at little girls, the video quickly went viral.  In fact, after only a week post-release, it exceeded 8 million views.  It’s easy to see why.  While the video is essentially a commercial for GoldieBlox, its message is pretty easy to get behind – that little girls should have more play options, including toys that promote girls’ participation in science, math, and engineering.  Featuring three cute, precocious engineers singing out against conventionally gendered toys, what’s not to love?

Well, for starters, the original soundtrack of the ad (i.e., the one shown above) was set to the music of, and had lyrics that played upon, the Beastie Boys’ hit song “Girls.” And neither the Beastie Boys nor their record label knew anything about it or granted their permission for its use in a GoldieBlox advertisement.  As they own the rights to the work, they didn’t hesitate to threaten GoldieBlox with copyright infringement, describing the unauthorized use of their intellectual property as a “big problem” with “very significant impact.”

In an unusual twist, however, it was GoldieBlox who first filed suit preemptively against the Beastie Boys.  In a complaint filed in the United States District Court for the Northern District of California, GoldieBlox sought a declaration from the court that its play on the song constituted “fair use” – a defense to any claim of copyright infringement.

While the Complaint has since been dismissed, and the ad re-released with a new soundtrack, the original music video remains a noteworthy example of someone asserting the fair use defense in the context of musical parody.

Fair Use & the Parody/Satire Distinction

Accordingly to the Supreme Court, the fair use doctrine permits the courts to “avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”  The GoldieBlox complaint characterized its unauthorized play on the Beastie Boys’ ditty as fair use – specifically a “parody.”

This characterization is significant in that it would have potentially impacted the fair use analysis applied by the court.

Generally speaking, a parody appropriates commonly known elements of prior work to make humorous or critical comment on that same work.  Legal protections for parodies over claims of infringement are relatively broad and apply even when, as here, the parody is used for commercial purposes.

Contrast this with satire – another type of fair use, separate and distinct from parody.  Satire, in comparison, uses commonly known elements of prior work to make humorous or critical comment on another subject.

Compared to satire, parody is afforded more leeway under the fair use defense to copyright infringement.  This is because a parody necessarily requires the original in order to mimic the original and make its point. 

A satire, on the other hand, can “stand on its own two feet,” and thus requires additional justification for the “borrowing.”  Indeed, according to Justice Souter, if a satire uses an original work merely to “get attention or avoid the drudgery in working up something fresh,” the availability of the fair use defense diminishes or even vanishes.  Perhaps the most famous (albeit controversial) judicial decision regarding the satire/parody distinction involved the poetic account of the O.J. Simpson double murder trial entitled The Cat NOT in the Hat! A Parody by Dr. Juice (pictured right).  In that case, the court determined that the book was not a parody protected by fair use because it did not actually poke fun at Dr. Seuss’ work, but instead merely used Dr. Seuss’ work as a vehicle for poking fun of something else entirely.

Due to the leeway afforded to parodies, GoldieBlox probably preferred to have its original “Girls” version labeled a parody and not a satire.  The complaint was therefore drafted to color the Girls “parody” as poking fun at the original song by stating that the original work relegated the female gender to “household chores.”  We’ll never know whether this interpretation of the Beastie Boys’ song as sexist would have gained any traction with the court.  After all, the Beastie Boys are known to be silly – these are the same musicians who brought us the anthem “You Gotta Fight For Your Right To Party.”

In the end, GoldieBlox may have faced an uphill battle keeping its “parody” from being labeled “satire.”

On one hand, one could argue that the song didn’t so much comment on the original as much as it commented on the subject of gender divided toy options for girls.  Ironically, this same social commentary that contributed to the video going viral – and the multitudes of “likes” and “shares” it enjoyed on Facebook – could have been the same thing to subject the advertisement to heightened legal scrutiny.

On the other hand, similar cases have come down on the parody side of the parody/satire distinction.  For example, one Southern District of New York case found that the television show Family Guy’s unauthorized play on Disney’s “When You Wish Upon A Star” constituted a parody.  The song “I Need A Jew” featured a melody and lyric structure markedly similar to the Disney tune, but words that played upon stereotypes of Jewish people.  The defendants argued that “I Need A Jew” constituted a parody because it juxtaposed the “saccharin sweet” original with ridiculous religious stereotypes.  The plaintiffs asserted that it was a satire because it comments more on racism and bigotry than on the original song.  The court sided with the defendants.

Another example (in the trademark context) is found in the near ubiquitous 1997 hit “Barbie Girl” by the Danish group Aqua.  Mattel, the manufacturer of the Barbie doll, brought an action over the song.  In finding that the song constituted a parody, the Ninth Circuit reasoned that, “The song does not rely on the Barbie mark to poke fun at another subject but targets Barbie herself.”  The court concluded that the parody did not infringe on Mattel’s trademark.

Fair Use & Public Opinion  

The Ninth Circuit has been more than clear that determinations regarding copyright, parody, and fair use are questions of law and most certainly not matters “of public majority opinion.”  Nonetheless, this did not stop the parties from engaging in a bit of a public relations skirmish.

GoldieBlox, already benefitting from the public’s clear adoration of its mission and message, drafted a complaint offering a scathing narrative on the gender stereotypes and bias purportedly proliferated in the original song.  In their own defense, the Beastie Boys released a statement providing as follows:

“Like many of the millions of people who have seen your toy commercial ‘GoldieBlox, Rube Goldberg & the Beastie Boys,’ we were very impressed by the creativity and the message behind your ad.  We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.  As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song ‘Girls’ had been used in your ad without our permission, YOU sued US.”

Then, almost as unexpectedly as it had filed suit to begin with, GoldieBlox dismissed its action, pulled the offending ad, and replaced it with a version containing a new soundtrack.  Maintaining that the first ad was indeed protected as a fair use, GoldieBlox attributed its change of heart to the request of the late Adam Yauch, a Beastie Boys member.  In an open letter to the surviving band members, GoldieBlox stated:

“We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising. Although we believe our parody video falls under fair use, we would like to respect his wishes and yours . . . We don’t want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.”

Thus, while it appears that the parties have worked the dispute out for themselves, we’ll never know how this case may have impacted the evolution of fair use jurisprudence.

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.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

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Greenberg Glusker Fields Claman & Machtinger LLP

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