I really didn’t think the Beastie Boys would risk the bad PR to sue GoldieBlox for ripping them off in a toy ad.
Boy, was I wrong: “GoldieBlox has acted intentionally and despicably with oppression, fraud, and malice toward the Beastie Boys,” reads their countersuit, reported by GigaOm’s Jeff John Roberts, who has helpfully highlighted the best parts of the suit (embedded at the bottom of this post).
The Beasties’ surprising decision means we could get a definitive answer after all on whether GoldieBlox’s parody of “Girls” falls under fair use. The Beastie Boys are suing for damages, punitive damages, attorneys’ fees, and lost profits as well as any “gains, profits, and advantages” GoldieBlox made from using their song.
Adding to GoldieBlox’s legal woes, the Beasties allege a “systematic campaign of infringement” by GoldieBlox that ripped off songs from the Beasties, Queen, Daft Punk, and several other artists. Two weeks ago I noticed that GoldieBlox had removed its advertisement that used Queen’s “We Are the Champions,” and the company refused to tell me whether it had bought a license. If the Beasties are right there, the toy company’s lawyers are going to be busy negotiating pricy settlements.
While it’s at least unclear whether GoldieBlox’s fair-use argument can prevail in court, the Beasties are also suing for trademark infringement, passing off, false designation of origin, false advertising, false endorsement, and unfair competition for “misleading and deceiving the public into believing that the Beastie Boys Parties’ goods and services are associated with or authorized by GoldieBlox,” though it’s worth noting that trademark infringement has fair-use exemptions too. The Beasties note that “Girls” is a “sarcastic anthem,” which ought to mean GoldieBlox’s parody gets less protection.
Hopefully, the press will be a lot more careful in reporting this news than it was when GoldieBlox sued the Beasties last month. Reports falsely said the Beasties had sued GoldieBlox and set off a major backlash against the band for picking on a corporation with a positive message for little girls.
Keep in mind that GoldieBlox has clearly operated in bad faith—or at least in Silicon Valley hubris—with regard to copyright, which has become increasingly important to musicians as music sales have collapsed. The Beasties’ complaint says GoldieBlox’s lawyers filed their lawsuit the same day the Beasties asked why they they were using “Girls” without permission, and the company apparently thumbed its nose at copyright law with several other songs, too.
As Roberts wrote two weeks ago when GoldieBlox removed the “Girls” parody, “All this makes it feel like the new lyric switch is just the latest phase in a cynical marketing ploy by GoldieBlox to generate as much press controversy as they can to sell their toys (which have received poor reviews).”
Always beware the marketers.