What kind of company takes a copyrighted hit song, rewrites the lyrics, and uses it in a commercial—without bothering to even ask the artist if that was okay? As Felix Salmon points out, the kind that comes from Silicon Valley’s “cult of disruption.”
I’ve followed GoldieBlox since its Kickstarter because the founder is a friend of a friend. My interest heightened after a misbegotten trip to see family last summer, whereupon my 3 year old twin girls picked up a highly regrettable princess and pink obsession. Long story short, I’m against all the stuff Goldieblox says it’s against.
I saw the “Girls” parody last week and thought it was an awfully clever bit of marketing. It sure made its way around my Facebook feed this weekend. And perhaps marketing is what it takes to fight Barbie/princess culture with its ungodly ad budgets. If girls are going to be marketed to (and frankly, I’d be a-okay with a full ban on advertising to children), let it be this kind. But let’s be clear: the GoldieBlox ad is marketing whose intention is to sell a product.
And so all the freehadist protests of fair use don’t cut it. You can’t take an entire song that’s not yours, change the words, use it to sell your stuff, and not pay the artist royalties. This is not a close call.
But the Beasties are in a no-win situation: Sue and they look like assholes. Don’t sue, and watch their work stolen to hawk somebody else’s merch (and open the floodgates to other parodies that are really just commercials).
Compounding the matter is the fact the Beasties are one of the few remaining bands that have refused to sell out to advertisers. The late Adam Yauch believed in this principle so fervently he put a clause in his will prohibiting his songs from being used in ads.
You’d think the press would have taken two seconds to be skeptical about this story—and to question whether they’re allowing themselves to become part of a sophisticated marketing campaign—but so far coverage has been just miserable.
For days, GoldieBlox had the PR upper hand, despite clearly being the predatory party.
The Hollywood Reporter kicked things off on the 22nd, writing “Beastie Boys Threaten Creator of Viral Video With Copyright Infringement,” a headline that’s been disappeared, rather than corrected.
Because, it turns out, the Beastie Boys never threatened GoldieBlox with anything. This is from an open letter the band released:
As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.
And a band rep says, “There was no complaint filed, no demand letter (no demand, for that matter) when they sued Beastie Boys.”
So when the Los Angeles Times wrote this, it was wrong:
The Beastie Boys are reportedly pursuing legal action against the makers of a video that went viral this week by putting a pink-empowerment spin on the artists’ “Girls.”
The Internet’s reaction to the alleged copyright infringement claim? What a bunch of babies!
Copyright foe Cory Doctorow wrote at Boing Boing that “Before GoldieBlox, Beasties plundered the ‘Girls’ melody (fair and square)” from the Isley Brothers’ ‘Shout.’” Uh, no:
Doctorow also wrote, falsely, in a separate post that, “The Beastie Boys have sent a legal threat to toymaker GoldieBlox over the company’s extremely clever ad, which parodies the Beasties’ early track ‘Girls’.” That post is uncorrected.
But Time gets credit for the worst performance of all. It headlined a piece “Beastie Boys Sue Little Girls,” which is a trifecta of bad journalism: dumb, inflammatory, and false. The mag disappeared its boo-boo, though. The story’s headline now reads “Toy Company Files Suit After Beastie Boys Threaten Action Over ‘Girls’ Video” and there’s no indication of its earlier whopper.
… in the key precedent for such issues, Campbell vs Acuff-Rose Music, Justice Souter explicitly said that “the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence” under the law than “the sale of a parody for its own sake”.