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

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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looking at the purpose and character of the use, the nature of the copyrighted work (fiction/nonfiction, published/unpublished) the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the potential market for and value of the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.

UPDATE: Public Giggs

Image by Getty Images via @daylifeWelsh soccer star Ryan Giggs, Manchester United's left-winger, this week in London's High Court consented to lifting the anonymity injunction issued last April by Mr. Justice (David) Eady that prevented The Sun from identifying him as the married celebrity allegedly romantically involved with Imogen Thomas, the former Miss Wales and Big Brother competitor.

The Guardian reports that Mr. Justice (Michael) Tugendhat noted anonymity in the matter had been inapplicable since February 1.  That Giggs purportedly engaged in a six-month affair with Thomas was not a state secret as not only did the foreign press "out" him [see "TUOL" post 5/18/11], but also, Brits gleefully tweeted about the relationship and Democrat MP John Hemming identified Giggs in the House of Commons, where he was shielded from the court order by parliamentary privilege.

Mr. Justice Tugendhat is weighing Giggs' claim for damages against The Sun for allegedly invading his privacy.

English Court Upholds Soccer Star's Goal of Anonymity in Press Coverage of Extramarital Affair

Image by Getty Images via @daylifeAn English judge has denied efforts by News Group Newspapers-owned The Sun to lift his injunction barring the release of the name of a married soccer star who allegedly engaged in an extramarital dalliance with former Miss Wales and Big Brother contestant Imogen Thomas.

According to an article in The Guardian and posts by the www.stinkyjournalism.org and www.mediabistro.com/sportsnewser blogs, Mr. Justice (David) Eady issued a temporary injunction that barred The Sun and other U.K. press outlets from disclosing the name of the soccer player who purportedly was Ms. Thomas' lover during a six-month affair. The justice found the soccer player had a reasonable expectation of privacy and that there was "no legitimate public interest" in allowing him to be identified in press accounts.  Thomas said she had no intent to divulge his name, nor did she seek notoriety, but lacked 50,000 pounds ($80,718) to pursue an injunction against her name being used.

Mr. Justice Eady's decision has no bearing on foreign press coverage of the scandal, as the Spanish daily Sport and Argentina's La Republica newspapers and www.mediabistro.com/sportsnewer blog used to their advantage. Less in the interest of journalism than out of fairness to Ms. Thomas, "TUOL" notes that Manchester United's left winger, Ryan Giggs, of Wales, is the married footballer who allegedly went beyond on-field scoring.

Judge (De)Grades Paper on College Prez Critique

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The Associted Press reports that a Laramie County District Court Judge has enjoined The Wyoming Tribune Eagle from publishing an article critical of Laramie County Community College President Darrel Hammon.

After its request to the college for a copy of a report that surfaced at an employee hearing was rejected, the Tribune Eagle obtained the report from an unnamed source that purportedly concerns a 2008 school-sponsored trip to Costa Rica in which Hammon served as a chaperone.

District Court Judge Peter Arnold apparently was swayed by attorneys for the college who sought an injunction against publication of the story by the Tribune Eagle on grounds that  it would violate the Federal Education Rights and Privacy Act (FERPA)[20 U.S.C. sec. 1232g].

Counsel for the newspaper has raised the possibility of publishing an article about the report, but removing the names of any students, to satisfy the intent of FERPA, which is meant to protect the privacy of students regarding matters, such as disclosing grades. It is not intended, however, to shield college employees and administrators from the consequences of possible misconduct, and Judge Arnold's order ultimately may run afoul of the First Amendment.

UPDATE  (5/26/10):   Judge Peter Arnold dissolved his injunction, freeing the college paper to report on President Hammon's Costa Rica adventure. The Court rejected the college's position that federal funding could be lost if the information became public.