Unlicensed to Ill - GoldieBlox vs. The Beastie Boys

Blog exclusive:

Startup GoldieBlox created a viral sensation in November with a video of a Rube Goldberg machine to promote its line of toys designed to spur girls’ interest in STEM subjects. The video was originally set to a version of the Beastie Boys’ 1987 song “Girls” with new lyrics (“girls to build a spaceship/girls to code a new app”) playing on the sexism of the original (“girls to do the dishes/girls to clean up my room”). 

GoldieBlox had not received permission from the Beastie Boys before using the group’s song in the video. The Beastie Boys don’t allow their music to be used in advertisements as a general rule, and this restriction is actually stipulated in late member Adam Yauch’s will. The Beastie Boys contacted GoldieBlox, and GoldieBlox preemptively filed for a declaratory judgment that its use of “Girls” was appropriate.

At first glance, many observers were surprised that the Beasties had voiced displeasure about GoldieBlox’s use of their song. The group's members have matured dramatically over the course of their careers, organizing the New Yorkers Against Violence Concert and the Tibetan Freedom Concerts, using award acceptance speeches to speak out on issues like the stereotyping of Muslims and the sexual assault of women at shows, and generally growing into all-around good guys. GoldieBlox’s mission seemed to be directly in line with the Beastie Boys’ ethos.

But The Beasties had valid concerns, which they outlined in an open letter:

Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad. We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.  

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.          

GoldieBlox raised the affirmative defense of fair use in their complaint, arguing that their version of “Girls” was a protected parody. The Electronic Frontier Foundation has posted a strong analysis of why they believe the company would likely succeed on this front; the four factors courts use in determining fair use all appear to favor GoldieBlox, and fair use exists primarily for the parody’s exact purpose of “remaking existing cultural works to create new insights and expression.” However, as Felix Salmon of Reuters rightly points out, quoting Campbell v. Acuff-Rose Music, "the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence" under the law than "the sale of a parody for its own sake." 

An argument could also be made that (as Salmon also noted) the original “Girls” was itself a parody of misogynistic rap music. The Beastie Boys were notorious for writing over-the-top parodies, but this fact was often lost on their audience. “Fight for Your Right,” from the same album as “Girls” (License to Ill), was an explicit parody of 80s hair metal. As Beastie Boy Mike Diamond said of “Fight for Your Right,” “the only thing that upsets me is that we might have reinforced certain values of some people in our audience when our own values were actually totally different. There were tons of guys singing along to 'Fight for Your Right' who were oblivious to the fact it was a total goof on them.” It’s logical to think that “Girls,” which appears one song before “Fight for Your Right” on the album, was a similar joke on its listeners. 

The law might be on GoldieBlox’s side (if you accept EFF’s fair use analysis), and the stated purpose of the products promoted by the ad is undeniably positive. However, the way GoldieBlox handled the dispute was opportunistic (which Salmon chalks up to a pervasive mentality of aggression in Silicon Valley). The company received a great deal of publicity for its product, and the dispute brought notoriety to the “Girls” ad, which had been submitted into a fan-voted contest to win a commercial spot during the Super Bowl. GoldieBlox appeared to be the winner of this dispute in old-school rap battle terms – gaining attention and sales by holding its own in a fight with more established artists.

GoldieBlox removed the song from the ad on Nov. 27. However, the Beastie Boys, Def Jam, Sony, and "Girls" producer Rick Rubin jointly filed a new counterclaim against GoldieBlox on Dec. 10, claiming copyright and trademark infringement, unfair competition, false advertising, and misappropriation of the right of publicity, and denying GoldieBlox's fair use argument. The complaint asserts that GoldieBlox has also infringed on the copyrights of artists like Queen and Daft Punk in the past. The claimants also state that the advertisement resulted in a "massive increase" in GoldieBlox's sales, and request GoldieBlox's profits obtained from its use of "Girls" in the commercial.