Content note: I call everyone in this fight assholes. There aren’t really any good guys. And I’m not a big music lover, so you don’t get any points from me for being super stars.
So by now everyone has seen the (awesome, IMO) video of the girls creating the Rube Goldberg machine to a parody of the Beastie Boys’ song “Girls” in the GoldieBlox ad. And everyone knows that the Beastie Boys (or their label) sent a C&D letter. By now everyone should also know that the one thing that really pisses me off is sexism. As a woman, I can’t stand this shit.
Another is legal bullying. As an attorney, I can’t stand this shit. When you don’t have a case against someone and threaten a lawsuit anyway, you’re a bully. You’re hoping that the other party is weaker and can’t afford adequate legal counsel and that they will cave to your demands. Yes, attorneys will write C&D letters even though their client has no case, and this makes attorneys look like attack dogs and not human beings capable of thought.
But aren’t GoldieBlox the bullies in this story? They were the ones that sued.
Yes, they were the ones that sued, but that doesn’t make them bullies. It means they called the Beastie Boys’ bluff. Maybe the Beastie Boys sent the letter because they wanted to work things out as peacefully as possible. Or maybe they sent it because they knew they didn’t have a case and that they would lose if they tried anything else. The suit initiated by GoldieBlox was a suit for a declaratory judgment. That means all they wanted was the court to determine that their parody was fair use under copyright law (BTW, parody is fair use under copyright law). They weren’t asking for money (other than attorney’s fees and court costs). They did this, IMO, because they knew they were in the (legal) right and wanted to prove it rather than ignore the C&D letter and be in the position of having to defend a lawsuit (if the Beastie Boys would have brought one). They would have a higher burden of proof as a plaintiff (meaning that by bringing suit, they were prepared to prove it was 51% likely that they were right, whereas if they waited to be sued, they would basically have to prove it was 49% likely that they were right), but it’s harder to get attorney’s fees as a defendant. So, by threatening to sue a new toy company with a weak case, you’re an asshole.
But what about Adam Yauch’s will? It says that his music is never to be used in advertising.
What about it? His will–and PBUH–does not trump copyright law. His wishes do not mean that, when the copyright expires 100 or so years from now, still no one can use his music in advertising. It means that he respectfully asks you not to. His wishes do not nullify the law.
This could be where GoldieBlox are assholes. Yes, morally they should have asked the Beastie Boys’ for permission to use their song, and they would have said no and we’d never have that great parody. But because their use was fair, they didn’t have to. And if they knew about Yauch’s wishes but did it anyway, that makes them bigger assholes. Even though they acted within the confines of the law.
But Weirld Al asks permission to make parodies because you have to ask permission.
Not because he has to. Because he is not an asshole.
I said before I’m not a music lover, but I’d like to amend that statement by saying that growing up, I was obsessed with Weird Al. I knew all the lyrics to his parodies before I even knew they were parodies. Because not a music lover. I heard Ricky before I heard Mickey. I heard Yoda before Lola. Etc. Etc. Knowing that they are parodies makes me appreciate the music more now, but it just didn’t play into it as a kid.
Weird Al asks permission before parodying a song to maintain professional relationships. Some artists never gave permission (Prince), so Weird Al does nothing. Not because legally he can’t but because morally he doesn’t want to. Other artists approve of the song but not the video (Eminem). Other artists will agree to some parodies but not others (Michael Jackson). Other artists (Nirvana) didn’t realize they had made it big until Weird Al asked to make a parody. And sometimes there is a huge miscommunication. Coolio.
Weird Al parodied Coolio’s song Gangsta’s Paradise and turned it into Amish Paradise. Weird Al thought he had permission from Coolio, but apparently Coolio’s agent never spoke to Coolio. So Coolio got angry. But Coolio didn’t sue. Because Coolio knew that Werid Al’s use (though annoying to him) was protected by copyright law.
Or look at Atlantic Records. Weird Al made a parody of You’re Beautiful. James Blunt liked it, but his label didn’t. So, Weird Al didn’t put the song on his album but performs it at concerts. No one sues because copyright law.
But this is commercial use. GoldieBlox is trying to sell a product. It’s different.
No, it’s not. Weird Al’s use is commercial too. He’s making money off the parodies as well. It’s still covered under fair use.
What about the Queen song? GoldieBlox uses music (and lyrics so not a parody) from a Queen song in another one of their videos.
WTF GoldieBlox?! How the hell am I supposed to champion (that was really not intended….I only saw it when rereading this for typos) you if you do something as stupid and obviously a copyright violation as that?! Don’t you have professionals working on your ads who know this shit or were they made in a basement using a camcorder and some kids from the neighborhood who you paid in ice cream?! Yeah, this is what definitely makes you guys assholes.
Fortunately, in the case of GoldieBlox v. Beastie Boys, past moronic actions don’t mean that you are in the legal wrong now. But it does mean morally wrong.