Have you produced a commercial video that remixed a copyrighted song in a way that you believed to be fair use? If yes, you’re in good company with the California toy startup GoldieBlox. Last week the company released a video that went viral (7 million views in less than a week) using a remix of Beastie Boys’ 1987 hit song “Girls”. The Beastie Boys’ weren’t too happy about the non-licensed use. GoldieBlox took preemptive action and filed suit in federal court to obtain a declaratory judgment of non-infringement. GoldieBlox’s non-infringement argument is based on copyright’s fair use doctrine.
When does fair use cross into copyright infringement?
Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Fair use can include commentary, parody, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed incorporation of copyrighted material in another author’s work under the four-factor balancing test discussed in my last blog.
In the present case, GoldieBlox argues that their video and the use of the song is a parody and says that its objective is to “make fun of the Beastie Boys song, and to further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.”
GoldieBlox is a startup, founded two years ago by engineer Debbie Sterling, that designs construction toys for girls. To bolster the company’s mission, GoldieBlox rewrote the lyrics of “Girls” and filmed three young girls singing the new song while setting off an intricately engineered Rube Goldberg machine.
According to a copy of the complaint, GoldieBlox claims the Beastie Boys’ original song is a, “highly sexist song,” and that their use is a parody falling under the fair use doctrine, similar to the Supreme Court’s decision in Campbell v. Acuff-Rose Music (involving 2 Live Crew’s Pretty Woman) in 1994. The company states their position succintly:
In the lyrics of the Beastie Boys’ song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. They are also shown engaging in activities far beyond what the Beastie Boys song would permit.
Unrelated but Maybe Not
In the United States, women make up just a quarter of the science, technology, engineering, and math workforce. Women earn only 19 percent of all engineering degrees, 26 percent of all math and computer science degrees, 38 percent of physical science degrees, and 38 percent of earth, atmospheric, and ocean science degrees. These facts are hard to overlook. GoldieBlox is not going to change these numbers overnight, but they may help. Should this factor into the Federal Court’s decision?
If you have legal questions related to fair use and/or copyright infringement in your production work, contact [email protected]
*Eric J. Harrison, Esq. is Chief Legal Counsel at Nimia.com