

What's Wrong With the Latest Beastie Boys Lawsuit - guiambros
https://www.eff.org/deeplinks/2013/11/beastie-boys-goldieblox-fair-use-lawsuit

======
tedivm
I normally side with the EFF (and donate a ton of money), but this is clearly
an advertisement. It's commercial. That's the whole reason they're being sued,
because the Beastie Boys don't want their stuff being used for advertisements.
The whole beginning of the blog post is trying to deflect that by talking
about remixing, and by accusing the Beastie Boys of being bullies.

This part in particular bothered me-

>But expect to hear this counterargument: that one of the most basic
“copyrights” is the right to control how your work is used—including whether
it is used at all. Proponents of this kind of claim will often invoke J.D.
Salinger’s steadfast opposition to any adaptions of his works. But the
argument forgets that every copyright set out in the Copyright Act is subject
to numerous exceptions – including fair use. Copyright ≠ total control.

While the Copyright Act does have numerous exceptions, fair use explicitly
takes into account whether something is commercial or not. Ignoring that is
disingenuous at beast.

~~~
tptacek
They're _not_ being sued. The band reached out to (one assumes) ask them not
to use their material without authorization in a commercial, and the company
_sued them_.

~~~
nitrogen
From
[https://en.wikipedia.org/wiki/Declaratory_judgment](https://en.wikipedia.org/wiki/Declaratory_judgment):

    
    
      A declaratory judgment is typically requested when a party
      is threatened with a lawsuit but the lawsuit has not yet
      been filed...
    

IANAL, but if Goldieblox are seeking a declaratory judgment that what they're
doing is okay, that's less severe than, and not the same thing as, suing
Universal or The Beastie Boys for some kind of reward or injunction.

Still, the video clearly invokes the memory of The Beastie Boys' song to
promote a product, giving the viewer the impression that Goldieblox is
endorsed by The Beastie Boys. If it were my identity being appropriated by
another company for advertising, I would not be okay with it either, no matter
how progressive the product (and that's why I no longer review things via
Google products, for example).

------
tptacek
This is an analysis that says companies with messages we "like" can use Calvin
& Hobbes in their advertising, as long as they do it creatively. Gross.

~~~
tedunangst
It's a special case of a more general principle. Companies we like can do
anything.

------
fatman
I think it's an important point that the GoldieBlox video is directly
attacking the message of the original song. To way oversimplify: Modifying
someone else's copyrighted work to make a generic point = Satire, not fair
use, not OK; Modifying someone else's copyrighted work to specifically
contradict the message of that work = Parody, fair use, A-OK.

~~~
ams6110
But for commercial purposes... I think that takes a lot of the argument away.

~~~
ISL
Satire and parody are practiced by the Onion for commercial gain. Should/does
that alter the protections afforded to such transformative works?

~~~
ams6110
The Onion is an editorial publication, in the business of parody and satire,
clearly a different category of use than a toy company creating a
advertisement.

------
scosman
Mike D & Ad-Rock respond: [http://www.nastylittleman.com/2013/11/25/open-
letter-from-be...](http://www.nastylittleman.com/2013/11/25/open-letter-from-
beastie-boys-mike-d-adrock-to-goldieblox/)

------
mturmon
Logically irrelevant, but also a factor for me: the product, and the ad, are
trying way too hard. I have a daughter in the target age range, and I found
the ad to be repellent.

It's addressing itself to adults, not kids, for one thing. And it seems to be
fighting yesterday's battles. The "pink is for girls" thing has been fought
out for years now. Everyone who could be convinced has been convinced.

~~~
darkarmani
> And it seems to be fighting yesterday's battles. The "pink is for girls"
> thing has been fought out for years now. Everyone who could be convinced has
> been convinced.

I think this is completely untrue. Especially after seeing my nieces this past
week. The more my daughter is exposed to the normalcy of colors other than
pink the better.

~~~
mturmon
I felt like the video was taking the wrong path. It was accepting that pink is
the normal for girls, and encouraging girls to rebel against pink. Even its
appeal to rebellion was shallow and stereotyped.

There is no consideration of what the kid wants, just nagging them to be a
certain way by buying the product. (My daughter is not now, nor has she ever
been, a pinkophile, but if she was, I wouldn't nag her to be something else.
;-)

------
guiambros
TL;DR: _Taken together, the factors favor fair use. Moreover, the video
furthers the purposes of copyright. It serves the public interest by advancing
political criticism and debate regarding sexist stereotypes about girls and
engineering. What is more, it’s a classic example of growing the cultural
commons by remaking existing cultural works to create new insights and
expression. That kind of creativity what fair use is for. And it’s part of
what made the Beastie Boys great._

 _On the merits, then, the fair use analysis is solid. But expect to hear this
counterargument: that one of the most basic “copyrights” is the right to
control how your work is used—including whether it is used at all. Proponents
of this kind of claim will often invoke J.D. Salinger’s steadfast opposition
to any adaptions of his works. But the argument forgets that every copyright
set out in the Copyright Act is subject to numerous exceptions – including
fair use. Copyright ≠ total control._

~~~
neumann
That first paragraph highlights the problem with the EFF's analysis.

It is _not_ in 'the public interest by advancing political criticism' if at
the end you try and sell you shitty toy.

I would buy the argument it if it was broadcast as a non-profit campaign and
at the end a shot 'sponsored by', but this is a commercial plain and simple.

------
desireco42
Thank you HN for your response, I totally expected to open comments and see
people siding with GoldieBlox here, like I would normally side with most
things EFF do.

I think GoldieBlox made this suit to promote themselves, so it looks like a
stunt to me. I am surprised that EFF jumped the gun, but then, it really
doesn't make me think any less of them.

------
kevingadd
I don't understand how GoldieBlox are positioned as the victims here when
_they_ were the ones to initiate a lawsuit and accuse the rightsholders of
being bad actors. Getting a letter from a rightsholder when you use their work
without permission for PROFIT is not exactly an unexpected turn of events.

If this were just some sort of educational or satirical video then I'd be more
willing to be on their side about this, but it's obvious they're looking to
sell product. If they're going to use someone else's work without permission
to make money, they should be willing to face the consequences (or at least
pay the normal royalties you pay when covering a song).

~~~
ganeumann
If you send a letter to someone threatening them with legal action, they will
often initiate legal action to have the court decide if your legal action
would succeed. I don't know what the Beastie Boys said to GoldieBlox, but the
EFF article mentions that GoldieBlox was worried that the Beastie Boys would
initiate litigation right at the holiday season, leaving them without a
commercial. GoldieBlox decided to ask a court to decide earlier.

There's nothing wrong with this. It does point out an interesting lesson,
though: never explicitly threaten someone with legal action, they might very
well take the opportunity to pre-emptively sue, and if you were just posturing
you'll now be spending a lot of money on lawyers. (This is why letters that
are pretty much threatening to sue will instead say something like "We trust
you will stop injuring us. If you do not, we reserve all rights.")

~~~
fatman
This tactic is even more common in Patent law. If you get the jump on the
would-be plantiff you get to pick the venue, and hopefully stay out of the
Patent-holder rubber stamp that is the Eastern District of Texas.

------
evan_
If I'd known it was this easy I would have released a commercial that changes
the words to "(I Can't Get No) Satisfaction" to be about my company, and sued
the Rolling Stones.

------
downer96
This is an interesting new wrinkle for me, when it comes to intellectual
property. In this case the benevolent anarchy of the old axiom "information
wants to be free" rings less true.

This one feels dangerously close to the classic power struggle between
underdog music artists and the rotten record labels that have a habit of
steam-rolling over their creative sensibilities so they can bastardize an
artistic work in the name of selling more spaghetti sauce.

This whole intellectual property thing has always, always, ALWAYS been about
the individual's fight against the slippery oligarchy of private companies and
corporations. It's almost impossible to paint a corporation as the poor,
defenseless victim. The Beastie Boys, in this respect are more individualistic
than the company.

In this case the Beastie Boys are not sell-outs. Their position rings truest.

It's funny to see this slight change in power differential augment the
perception of the conflict. Does this mean that information wants to be free,
if and only if it's being freed into the hands of a private individual and not
a faceless profiteering company? Yeah, kind of.

Sorry, EFF. You are pretty much entirely wrong on this one.

------
trekky1700
Did Weird Al have to get permission for his song parodies? This is essentially
a parody, though I don't know how the law applies differently if it's made for
a commercial. It'll be interesting to see how this plays out. Anyone know how
it legally differs from other "same beat, different lyrics" songs?

~~~
scrabble
Does he have to? Most people say no.

But he doesn't publish a parody without permission. He makes sure he has
permission before he does any of them.

------
Imagenuity
A lawsuit = massive attention, the kind advertising doesn't buy.

------
camus2
GoldieBox is a toy company right? so they are doing that ad for profit, i dont
think the BB will lose their case. It's not fair use if it is commercial.

~~~
ironchef
"It's not fair use if it is commercial" <\- that statement isn't true. See
Campbell v. Acuff-Rose Music Inc as an example where parody (for profit) still
won.

~~~
anigbrowl
You're on thin ice with that argument. Selling a parody of a creative work is
commercial, but that's wholly different from presenting a commercial message
for a separate product.

Imagine a TV advert for cosmetics or apparel that used 'Pretty woman' (even in
parodic form or heavily transformed): this is a very different kind of
commercial application. In your example the parodist is selling a new version
of the song; in the example above a new version of the song is being used to
sell something else. This is a classic example of where licensing is
appropriate because any resulting commercial transactions will not be made by
an audience on aesthetic grounds of preference for the new song, but by
customers who wish to purchase a girl-themed construction toy.

I think your/the EFF's legal theory here is DOA and will be extremely
surprised if GoldieBlox succeeds.

~~~
ironchef
I guess I'm confused as to why. Commercial use is but one of the four factors
(within the purpose and character factor). Is it only being used to supersede
the original and generate commercial gains? Or is it being used to stimulate
for general enrichment? In combination with criticism of the original song it
could (I believe) be seen as the second. Because of the criticism it could be
argued to be a transformative and not merely a derivative work, no?

~~~
anigbrowl
It's somewhat transformative, though mainly in the lyrical department;
musically it doesn't use the original recording but it does employ the same
compositional elements virtually unaltered, so it's not as transformative as
it could be (eg 'quoting' a short musical sample as a motif in a more original
composition). But losing any prong of the argument is a problem, and even the
EFF admits the length amounts to almost the same as the original, while
offering the weak excuse that it was necessary to show a sufficiently
elaborate machine.

I do agree that the harm that would be suffered by the band/publisher is
negligible, but 'they can afford it' is a weak rationale; the band/label are
in a much stronger position on this prong because they've consistently refused
to license their work for commercial purposes, so they can argue that this
represents brand dilution rather than the relatively paltry cost of a
temporary license, leaving the door open for a finding of more significant
economic damages. Now if they counter sue Goldie Blocks the court might not
look too favorably on it, but as it is GB's suit IMHO amounts to little more
than a temper tantrum about the company's inability to get what it wants. Of
course, the firm may consider the publicity value to be greater than the legal
costs.

------
trololol
the eff article is sexist, i don't think i will be donating to or praise eff
anymore.

(from the article):

"GoldieBlox could have made a less intricate machine, of course, but that
would have undermined the purpose of showing the amazing creative engineering
girls can do"

GIRLS?! i think most intelligent adults prefer the terms female or women... do
grown men refer to themselves as/idetify with the term "boy engineers"? no i
didn't think so.

poorly written article by someone trying too hard but missing key points in
gender equality/social construction.

eff please be better than this.

