A toy kit intended to empower a generation of female engineers borrows a Beastie Boys tune.
By G.F. | SEATTLE
GOLDIEBLOX, an American toymaker, bills its mechanical toys as a means of getting girls interested in science, technology, engineering and maths. It is a noble goal, and one that saw the company through a successful Kickstarter crowdfunding campaign for initial production a year ago, and into a fully fledged business with distribution into toyshops across America. But a viral advertisement recently made by the firm scored both many millions of views on YouTube and a barrage of criticism. The video, which showed three young girls building a Heath Robinson contraption out of GoldieBlox toys, used the tune to a Beastie Boys song, "Girls", with newly recorded music and rewritten lyrics. GoldieBlox never got permission to use the tune, and soon received a complaint from the band. But the toymaker said that the song in its ad represented a parody, and was therefore legal. Does parody trump copyright?
In most countries anyone wanting to use copyrighted material must obtain permission from the copyright holder (unless the holder has already issued a pre-emptive licence, such as one from the Creative Commons organisation). Two exceptions exist in American law. The first is compulsory licensing, which requires any song released to the public in any medium (from wax cylinder to digital download) to be available for any other party to re-record in a substantively similar form. The cover artist pays a fee to the composer for each copy sold or given away. The second exception is fair use, designed to allow parody, commentary and analysis that advance academic, political or social purposes. A four-part test determines whether a derivative work falls under fair-use protection. But the test is ambiguous and relies on litigation, which is costly. Most artists therefore avoid relying on fair-use provisions, and instead seek permission (as "Weird Al" Yankovic does with his parody songs) or avoid using copyrighted material that cannot be licensed.
GoldieBlox did not ask the two surviving Beastie Boys, Adam Horovitz and Michael Diamond, nor the estate of the third, Adam Yauch, whether it could adapt the band's song for its advertisement. Even if it had, the answer would have been no: the band says it never licenses its music for advertising (Mr Yauch noted this specifically in his will). Nor did GoldieBlox attempt to rely on compulsory rights, because those cover audio rights only; a song's use alongside video (as in the ad) isn't covered. Rather, GoldieBlox stated that its use of the song represented a parody and a piece of social commentary, by changing the song's original, sexist lyrics ("Girls to do the dishes, girls to clean up my room") to empowering ones ("Girls to build a spaceship, girls to code a new app"). After receiving a complaint from the Beastie Boys' representatives, GoldieBlox filed a lawsuit commonly used in fair-use proceedings asking for a declarative judgment against the Beastie Boys, to affirm the advertisement's status as a parody. (A filmmaker seeking to have the copyright to "Happy Birthday" found invalid did the same a few months ago; the case is still in litigation.)
After the Beastie Boys published an open letter expressing their dismay at being sued, the toymaker pulled its ad and uploaded a new version with different music. It says it will withdraw its suit once the band agrees not to pursue its copyright-infringement action. Lawyers remain at odds over whether the advertisement represented a parody or simply a rip-off. But GoldieBlox and the Beastie Boys seem to have settled their differences. Mr Horovitz and Mr Diamond wrote: "We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering." GoldieBlox for its part notes: "We don’t want to fight with you. We love you and we are actually huge fans." Happily for all concerned, the controversy happened just in time for the Christmas shopping season.
