Beasties

Companies spend millions of dollars to gain the kind of brand awareness that GoldieBlox, a relatively new toy company few had heard of until recently, achieved in a scant few weeks. Cost, thus far: a video (that went viral) and attorneys’ fees for proactively serving papers to the Beastie Boys’ record label, Def Jam Music Group, whose own lawyers had threatened the toy maker with copyright infringement, pointing out that the fledgling company didn’t secure its permission before using its music.

Inevitably this led to a flurry of media coverage, first right after the video was posted (Slate called it “a stupendously awesome commercial”) then even more after the Beastie Boys weighed in. The video, which portrayed three girls creating a Rube Goldberg machine out of toys set to the music of the Beastie Boys “Girls” but with different lyrics, tallied some 8 million views before the company made it private, effectively pulling it down. In its stead is another (pretty lame) video with the same action but a different song.

Goldieblox then posted an apology to the Beastie Boys on the company blog. “We don’t want to fight with you,” it began. “We love you and we are actually huge fans.” The company claimed that it was “completely unaware” that Adam Yauch, one of the group’s orginal members who last year succumbed to cancer, had declared in his will that “Beastie Boys songs never be used in advertising.”

The toymaker emphasized that it still believes that its video qualified as “parody” and therefore is covered under “fair use,” but said in addition to removing the video it’s prepared to stop its lawsuit “as long as this means we will no longer be under threat from your legal team.”

Cynically, GoldieBlox seems to have ripped a page out of the playbooks of Youtube and Samsung, both of which profited mightily by baldly trampling over others’ copyright, figuring, rightly, that any legal penalties would be dwarfed by the advantage it would gain. The Goldieblox strategy is tried and true: it’s better to beg forgiveness after than ask permission first.

In Youtube’s early days, its founders “willfully ignored infringement” to help the site maintain its torrential growth. Instead they only wanted to give the “perception” they were concerned with posting copyrighted material while keeping “truckloads” of  “copyrighted content” that could be located through simple searches. One Youtube founder, Jawed Karim, even uploaded copyrighted videos to Youtube, a move that Steve Chen, another cofounder, criticized. In an email he wrote: “We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the cofounders is blatantly stealing content from other sites and trying to get everyone to see it.”

The following year, Google bought Youtube for $1.65 billion a year and a half after it launched.

Anyone who has compared the line of Samsung mobile phones and tablets to Apple’s iPhone and iPad can’t help but notice stark similarities. Four days ago a jury found Samsung guilty of patent infringement and ordered it to pay $290 million. A year ago another jury also ruled in Apple’s favor against Samsung, accessing $1.049 billion in damages. In the meantime, Samsung has increased its lead in mobile phone sales globally over Apple, grabbing a 32 percent market share vs. Apple’s 14.3 percent in the third quarter.

The Korean corporation’s IT & Mobile Communications Division, which includes its Networks and Digital Imaging division, was led by “sound sales” of its Galaxy S3 and Note 2 devices in the first quarter of this year, generating almost $30 billion. So that $1 billion and change penalty levied by two juries might be less than 2 percent of the annual revenue that mobile device sales generate for the company. Samsung must view these lawsuits as simply a small price to pay for doing business.

The same may go for GoldieBlox, albeit on a much smaller scale. Its toy, “GoldieBlox and The Spinning machine,” is, as I write this, ranked #8 in Amazon’s toy section, right behind Lego’s Minecraft, and millions who had never heard of it have the name forever etched in their minds. Part of that, no doubt, is due to the virality of the original video, aided by the Beastie Boys soundtrack. The rest is driven by all this press.

GoldieBlox, which claims to be “on a mission to inspire the next generation of female engineers began as a Kickstarter project 14 months ago, raising more than $285,000. Its founder, Debbie Sterling, a Stanford engineer, wrote that she wanted “GoldieBlox to inspire girls the way Legos and Erector sets have inspired boys, for over 100 years, to develop an early interest and skill set in engineering. It’s time to motivate our girls to help build our future.” Who wouldn’t want to get behind a mission like that? More than 5,000 backers did.

Reuters blogger Felix Salmon views the company’s cynical post first and ask permission marketing strategy as emblematic of the “cult of disruption” (a term first coined by our own Paul Carr) that characterizes many Silicon Valley startups. Nevertheless, it may have a point that its use of the Beastie Boys music falls under “fair use.”

Now, no one can predict how a court would rule, which is why so many copyright cases settle before ever getting to a jury deliberations. Ever wonder why newspapers, which once screamed about Google and HuffingtonPost aggregating their stories, never sued? Because they were afraid they could lose, and this would make things even worse (or better, depending on your perspective).

It may be irrelevant that the Beastie Boys don’t want their music used for commercial purposes — and make no mistake, GoldieBlox use of the band’s “Girls” in a video is to promote sales of its girl-friendly products. And even though the company used the song for commercial purposes that doesn’t mean it still can’t be protected under “fair use,” a squishy term that is very difficult to define. At NYU, where I teach, we took a stab at it in our “Journalism Handbook: Ethics, Law & Good Practice.”

As a writer you can legally use a limited amount of copyrighted material for purposes of commentary and criticism, and parody, without first seeking permission. A book reviewer, for instance, may quote from the text she is reviewing; a film reviewer may outline the plot of a film to discuss whether the story holds together; a comedian may conjure up characters from a popular movie to be able to poke fun at it. Without the protection of fair use, copyright holders could prevent negative reviews or parodies of their work from being published or broadcast.

At the heart of the GoldieBlox and Beastie Boys debate is whether the video could be considered parody. While the music is recognizable as a Beastie Boys song, the lyrics were changed. (You can compare the two full sets of lyrics here and here.) What’s particularly meta is that the Beastie Boys originally intended “Girls” to be a parody, so what you have here is a possible parody of a parody. In other words, the Beastie Boys are fighting over Goldieblox’ right to parody.

There is one case that comes to mind that may offer insight into how a court might have ruled. It involved the rap group 2 Live Crew, which released “Pretty Woman,” based on the music of Roy Orbison and his 1976 hit, “Oh, Pretty Woman.” The group never sought permission for the music.

The case wound through the courts until the Supreme Court weighed in. Under US Copyright Law, section 107 of Title 17, in determining “fair use,” four factors must be taken into account:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relationship to the work as a whole.
  • The effect of the use on the potential market for the work.

Justice David Souter wrote that a work’s commercial intent is but one factor to consider while the “nature” of the work in 2 Live’s case had little relevance. It was the final two factors that were most important in rendering a decision. While the rap groups use of some “Pretty Woman” lyrics  — “Pretty Woman, walking down the street…” and the bass line could be said to go to the heart of the original artwork, it is these characteristics that make it ripe for parody in the first place. Finally, Roy Orbison’s record label – and subsequently the Beastie Boys – could not prove how these parasitic works caused economic harm. As a result, the Supreme Court ruled that 2 Live Crew’s version of Pretty Woman was covered by “fair use.”

If it worked for 2 Live Crew, it might also succeed for Goldieblox. Then again, it’s a startup without the resources to fight an endless stream of court cases, not to mention the bad press that would ensue in taking on a well-financed band, its record company, and legions of fans that want to protect the non-commercial legacy of its deceased front man. One good rule of life: Don’t fuck with the Beastie Boys.

Unlike Youtube and Samsung, GoldieBlox has tactically retreated far earlier, a smart move. If the Beastie Boys go after the toymaker, they’ll look like the hunter shooting Bambi. More likely everyone will want this to go away, the company has scored a marketing coup, The Beastie Boys can return to whatever they are doing these days, and the only ones to suffer will be the lawyers who would have commanded legal fees for years to come.

As the original GoldieBlox song went:

“Girls to build the spaceship / Girls to code the new app / Girls to grow up knowing that they can engineer that.”

And when it comes to engineering the best possible outcome, GoldieBlox founder, Debbie Sterling, may have done just that.