You’ve probably seen this by now. Goldieblox, a company that makes toys designed to get young girls excited about engineering , is suing the Beastie Boys for the right to use a parody of the song “Girls” in a YouTube ad for their toys.
Reading the reaction to the case, you quickly suss that for most people it’s about more than the legal implications of copyright.
If you side with Goldieblox, there’s a poetic justice to the whole thing. The Beastie Boys famously morphed from bratty misogynism into very earnest political progressiveness. “Girls,” from Licensed to Ill, is a product of the early, PBR-swilling, giant-inflatable-penis-as-a-tour-prop incarnation of the band.
Girls - to do the dishes
Girls - to clean up my room
Girls - to do the laundry
Girls - and in the bathroom
The poetic justice is in seeing those lyrics, which are, frankly, pretty ugly, transformed into an anthem about female engineering power.
Girls, you think you know what we want
Girls, pink and pretty's it's girls
Just like the fifties it's girls
You like to buy us pink toys
And everything else is for boys
And you can always get us dolls
And we'll grow up like them, false
Plus, if you side with Goldieblox, you probably see a hypocrisy here. The Beastie Boys built a career on sampling. How can they then turn around and tell Goldieblox their own work can only be recontextualized with permission?
If you support the Beastie Boys, then there’s a good chance that this case still isn’t, at its heart, about copyright. It’s about artistic control and about the creep of commercialism.
Throughout their career, the Beastie Boys have maintained a hardline stance against their songs being used in ads. Licensed to Ill was funded with money from a lawsuit against British Airways, who used the song “Beastie Revolution” in a 1984 ad without permission.
And when Adam Yauch died last year, he stipulated that he never wanted any of his songs to be used in advertisements.
I thought about this case all weekend (my life is pretty boring). I grew up on the Beastie Boys, although I also grew up skipping “Girls.” It’s the first song I can remember making me cringe. Up until an hour ago, my sympathies were with the Beastie Boys. After all, I thought, if you can transform any pop song into a jingle and call it parody, aren’t we just headed towards of slippery slope of ads pilfering whatever songs they want?
Then I spoke to an actual expert, Julie Ahrens, Director of Copyright & Fair Use at Stanford’s Center for Internet & Society. She convinced me that Goldieblox is probably in the right here. Both legally, but also in whatever larger ethical artistic morass this case really seems to belong to. After all, while the Goldieblox ad is, in fact, an ad, it’s also a legitimate piece of cultural criticism. Here’s our conversation:
PJ: I have a very confused layman's understanding of fair use. I thought that if it's parody, it may be protected under fair use, but if it's used for a commercial, it probably isn't. So what happens when both of those things are true?
JULIE: There isn't a rule that if you’re doing something that is "commercial," -- which by the way, doesn’t mean something that’s in a commercial, it means used for a commercial purpose -- there isn’t a rule that that’s distinguishing factor. It's not where you draw the line of what's fair use and what's not. It's a subfactor within the fair use analysis.
The way I look at it, you have this song that's very clearly a parody of the original. It’s taking to task the idea that girls are there to do the dishes. And whatever else the original Beastie Boys lyrics said. And Goldieblox is changing it, putting it in a girl’s voice. They're saying, "No! Here's what we do. We can engineer things, we can build apps." So, obviously they’re criticizing the message of the original using and using the original to make fun of it as well.
Now obviously it's a commercial for the toy. But the toy and the commercial are part of a bigger thing than selling the toy. The greater message is, "Let's rethink how we stereotype what's a girl's role, or what a girl's product might be." So this product itself has its own social goal as well. So I think that gives the Goldieblox some real ammunition in a fair use argument.
The way the law works, fair use is a four factor test. And all of the factors are weighed together. Even if the fact that its in a commercial may slightly weigh against finding a fair use, you have these other competing considerations. And frankly, as far as whether it’s commercial or not, they aren't selling a CD that's competing with the Beastie Boys music.
That's another way of looking at it that cuts against the idea that even though its a parody it shouldn't be allowed because its an ad for a product. But it's not for a car or a soda. The message of the product is tied with the parody.
PJ: That makes a lot of sense. That it's not just a question of if its an ad or not - full stop.
JULIE: Yeah. It’s context. The most important thing courts look at when they're looking at a fair use case is "What's the purpose of the use?" It's way too narrow to say this this video is just to sell toys. The purpose of the use is also to get this bigger message out. So you can see how those arguments stack up in favor of the use.
The other question we have to ask ourselves is: "Is this kind of use that society is better off for having or not having?" I take the view that in a country that values free speech that more freedom to criticize and denounce ideas you don't agree with is good, and to do that effectively you often have to use the thing you're criticizing to make your point.
Also, from a practical standpoint I can't imagine this case goes very far. I did see people saying that MCA's will said that his music would never be used in commercials.
PJ: But that seems totally - that seems like it might matter to someone symbolically. But it doesn’t seem like it would matter legally.
JULIE: Right. Unless you buy into the whole line of thinking about copyright, that the most important thing is to control what people can say or can't say. Like JD Salinger was famously protective of his book and wouldn't' let it be made into a movie. That's a right that we give him, that kind of thing. There's that line of thinking. It's more of a moral explanation for why someone like the estate for MCA might be able to control a use like this. But it's not actually the way our fair use and copyright laws are written. Copyright doesn't give you the right to control criticism of your work or your message.