GoldieBlox Super Bowl ad undermines its Beastie Boys legal position

By Adam L. Penenberg , written on February 3, 2014

From The News Desk

Oh, look. Goldieblox, the toy company that seeks "to inspire the next generation of female engineers," had a new commercial run during the Super Bowl.

Paid for by Intuit -- the result of Goldieblox winning the accounting software company's "Small Business Big Game" contest -- it has stark similarities to the video ad that got the fledgling toy company in legal hot water with the Beastie Boys last November, which I wrote about for Pando.

To recap: The Beastie Boys' flavored video, which went viral, portrayed three girls creating a Rube Goldberg machine out of toys set to the music of the Beastie Boys “Girls” but with different lyrics, tallying some 8 million views before the company pulled it. In its stead, it placed a lame video with the same action but a different song.

Goldieblox 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 original members who  succumbed to cancer had declared in his will that “Beastie Boys songs never be used in advertising.”

Like the first ad, last night's Super Bowl commercial included the music to a popular song that was retrofitted with different girl power lyrics. This time, instead of the Beastie Boys, Goldieblox took the music from the heavy metal anthem by Slade/Quiet Riot's "Cum on Feel the Noize," turning it into "Come On Bring the Toys."

Cute, right? But there's one key difference between the two ads. This time, according to a press spokesperson for RPA, the agency that produced the ad, the music was licensed, courtesy of Intuit. It lumped in the amount it paid to secure the rights to the music as part of its overall production budget, which it would not disclose.

I have argued in the past that GoldieBlox seems to have ripped a page out of Youtube's playbook, which seemed to have followed the maxim: It's better to beg forgiveness than ask permission. It certainly worked for Youtube, which ultimate profited by ignoring popular videos covered by copyright so to squeeze every last bit of traffic out of them. One Youtube founder, Jawed Karim, even uploaded copyrighted videos to Youtube, a move that Steve Chen, another cofounder, criticized. The following year, Google bought Youtube for $1.65 billion a year and a half after it launched.

All along, Goldieblox has maintained that using the Beastie Boys music without permission was covered by "fair use," and the video should be classified as "parody." And the commercial that ran during the game is almost identical in approach. It's almost as if the toymaker, which pulled the Beastie Boys-inspired ad, replacing the music with something else, is admitting it was in the wrong.

Abby Dixon, a spokesperson for Goldieblox, would not comment, other than to say that "GoldieBlox is actively working to settle with the Beastie Boys."

Nonetheless, you can still find the GoldieBlox "Princess Machine" ad -- with the Beastie Boys' music on it -- available on… Youtube.