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Fight for Your Right to Advertise

by Paul Rapp on November 27, 2013

 

Sorry I missed the last two columns. There have been gnarly litigation deadlines and some armed insurrections up the mountain. I’m now in a strange sort of exile, operating out of a safe house with double-encrypted dark-fiber VPN, a continuously scrambled satellite phone, three kinds of bourbon, Humble Pie’s Rockin’ The Fillmore-Complete Recordings, an assortment of ironic facial hair appliques, my dog Kimchi, some designer urban-camo attire, and enough organic grass-fed torrone nougat to see me through ‘til Spring. It could be worse.

OK. The Beastie Boys thing. Last week, a cool little girls’ toy company, Goldieblox (“building games for girls to inspire future engineers”), stuck a two-minute video on YouTube titled “Goldieblox, Rube Goldberg & Beastie Boys ‘Princess Machine’ (a concert for little girls). The video features a bunch of little girls rocking a huge Rube Goldberg-style contraption set up all around a suburban house, with the girls rapping a version of the Beasties’ song “Girls” from their 1987 debut album Licensed to Ill.  The clip will have more than 9 million views by the time you read this.

The Beasties’ song is a silly little unlistenable trifle, a disposable cop of the Isley Brothers’ “Shout,” and it features the oh-so-tasty lyrics:

Girls, to do the dishes

Girls, to clean up my room

Girls, to do the laundry

Girls, and in the bathroom

Girls, that’s all I really want is girls

Two at a time, I want girls

With new wave hairdos, I want girls

I ought to whip out my girls, girls, girls, girls, girls!

The Goldiblox folks replaced this sublime poetry with lyrics like:

Girls build a spaceship

Girls code the new app

Girls that grow up knowing

That they can engineer that.

Girls. That’s all we really need is Girls.

To bring us up to speed it’s Girls.

Our opportunity is Girls.

Don’t underestimate Girls.

Pretty freakin’ great, no? If I had preteen daughters, I’d be on this like stink on poop.

But the Beasties (or their record company, or publisher, or someone) didn’t think so, and apparently contacted Goldiblox last week and complained enough that Goldiblox ran to federal court seeking a declaration that it wasn’t infringing the Beasties’ precious copyright in the musical composition.

And, oh boy, does everybody have an opinion on this. The Beasties are hypocrites! The Goldiblox people are criminals! It can’t be fair use ’cause it’s in a commercial! The Goldiblox people are heroes! The Beasties are reformed and are now all Buddhist and feminist and shit! Dead Beastie Adam Yauch specified that no Beasties tracks would ever be used in advertising and that’s that! The Beasties are in a pickle, dancing around the issue, and issuing carefully worded press releases. Interestingly, amid all the posturing by both sides, the Beasties don’t appear to have issued a take-down demand to YouTube for the clip. It’s still there.

Cripes, people, don’t git yer undies in a bundle. It’s not copyright infringement. It’s fair use. It’s a parody, look at the lyrics! It comments on the original’s abject misogyny, and it doesn’t matter if the Beasties were just kidding. (As one of the Beasties said about the song in a 1994 interview: “It’s really scary when you do something as a goof that then 4 million people take for real.”) Goldiblox turned the tables, but good. And as the Supreme Court held in the landmark decision involving a god-awful 2 Live Crew version of Roy Orbison’s “Oh Pretty Woman,” parodies are a pure form of fair use.

But it’s used in a commercial! So what? Fair use don’t care! The intended use of the Goldiblox version is but one factor out of many that courts consider in making fair use determinations, and here the rest of the factors bury the commercial use no matter how you cut it. And a stipulation in one person’s will, as admirable as it might be, doesn’t trump federal law.

So, Goldiblox has a get-out-of-jail-free card, right? Well, no. Look at the title of the video, the title put up by Goldiblox. It includes the name “Beastie Boys.” If you weren’t aware of this sad little controversy, wouldn’t you think the Beasties had something to do with the clip, that they at least endorsed the clip? I sure would. Assuming New York state law applies here (because the Beasties are [I think] based in NYC), the use of their name in the title of the clip likely violates NY Civil Rights Law § 50, which forbids the unauthorized use of one’s name or likeness in advertising. This isn’t a copyright issue; it’s a privacy issue. I can’t believe the Goldiblox people, so savvy and creative in making the video, were so sloppy in naming it. This could get very expensive. Somebody at Goldiblox definitely has got some ‘splainin’ to do.

Paul C. Rapp is a local entertainment lawyer who represents fine artists and not-so-fine artists, and who doesn’t enjoy long walks on the beach.