Tuesday, November 26, 2013

GoldieBlox & 3 Little Beasties: Viral Video a Fair Use?

 (Photo credit: Wikipedia)
In the eyes of their adoring fans, what can make the 32-year-old Beastie Boys hip-hop band unhip?

How about a copyright infringement war against an educational toy company whose viral video encourages girls to become engineers that is taking shape in the United States District Court for the Northern District of California?

In an eight-page complaint, GoldieBlox, Inc. v. Island Def Jam Music et al (Case No. 3:13-cv-05428), the plaintiff, a San Francisco-based company founded by a Stanford alumna that makes games and toys intended to draw girls to technology and science, seeks injunctive relief and declaratory judgment from the court that a two-minute video that already has drawn more than eight million views is protected by the Fair Use doctrine [17 U.S.C. sec. 107] against a potential copyright infringement claim over the video's parody of a Beastie Boys hit Girls, from its 1986 Licensed to Ill album.

The video at issue depicts girls erecting an elaborate gizmo to the Beastie Boys tune with altered lyrics that include: "Girls to build the spaceship/Girls to code the new app/Girls to grow up knowing/That they can engineer that." The corresponding original lyrics are far less politically correct: "Girls to do the dishes/Girls to clean up my room/Girls to do the laundry/Girls and in the bathroom/Girls, that's all I really want is girls."

The surviving original Beastie Boys are Adam Horovitz ("Ad-Rock") and Michael Diamond ("Mike D"). An original band member, Adam Yauch ("MCA"), succumbed to cancer last year, and a provision of his Will purportedly says the band's music should never be used for purposes of advertising, which could be significant if he solely held the copyright to Girls, according to a Forbes magazine account of the suit.

Horovitz and Diamond sent an open letter to Goldieblox praising the creativity of the video and supporting the notion of attracting girls to science and engineering through construction toys and the like, but pointedly saying the video constituted an advertisement, an affront to their philosopy about commercialism, and more to the point, an alleged infringement of copyright.

The four factors a court weighs in deciding whether the fair use defense should shield an alleged infringer involves looking at the purpose and character of the use, the nature of the copyrighted work (fiction/nonfiction, published/unpublished) the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the potential market for and value of the copyrighted work.

Battle lines already are being drawn, with the First Amendment Internet advocate Electronic Frontier Foundation squarely siding with GoldieBlox. EFF concedes that the viral video's length nearly matches that of the original song, which was both creative and published, though EFF claims the Girls parody is transformative and doesn't harm the value of the copyrighted work, but, rather, sparks debate about sexist stereotypes about girls shying away from becoming engineers.

On the other hand, however noble the intentions and warm & fuzzy the video may be, the underlying hope is that the start-up company, GoldieBlox, will sell its games and toys to the video-loving public at a profit. Stay tuned. Perhaps the Beastie Boys should look to their discography and heed the advice of their 1992 album Check Your Head, or 2011 hit Don't Play No Game That I Can't Win.
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