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Originally Posted by JohnnyChavello
You mean the 2 Live Crew case (Campbell)? I don't think they are playing both sides and here's why:
Campbell is very close to being directly on point, but 2 Live Crew was making music, not selling toys. The Supreme Court in that case said, "the use...of a copyrighted work to advertise a product, even in a parody," is given less protection under fair use law. Campbell was not an advertising case, so the Court was making a clear distinction in justifying its decision. So, this is that case - should product advertising be given the same amount of protection as other forms of speech - songs, movies, etc. or are there reasons why advertising should be treated differently? (Also, the Goldieblox parody sounded a LOT more like the original than 2 Live Crew's Pretty Woman.)
The degree to which speech is commercial is relevant to all kinds of first amendment questions. In cases where the speech is the advertisement of a consumer product, it begins and ends as a commercial work. Despite the fact that musicians create music in order to make a living, and sell music, advertising is already commercial in a way that artistic works aren't. And in this case, the advertisement (commercial) is promoting a consumer product (toys) by a for-profit corporation (Goldieblox). The more I think about it, the more I think Goldieblox would and should lose. (Not to mention the trademark and right of publicity claims that are now joined in the lawsuit.)
In the Beasties current cases with Trouble Funk, and all other cases involving alleged infringement of music copyrights in the creation of new music, the analysis should be different. The goal of copyright law is to promote the public interest by encouraging the production of new creative works. Commercials and ads might be clever and interesting, but they're not creative in the same way and the rights granted by copyright aren't a necessary incentive for the creation of advertising - you could eliminate all copyright protection for commercials today and it wouldn't even slow them down.
I'm a huge fair use advocate, but they're right about this.
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Yeah, I meant the 2 Live Crew case. But doesn't it get more complicated than just "it's a commercial so you lose, even if it's a parody"? I agree that an advertisement is about as far as you can go towards commercial use, but music made and sold to the masses is still a commerical use. It's not like a news story or an educational use. What if the Beasties use "Superfly" for the purpose of a cut on their album (Egg Man). And let's say, for the purpose of this discussion, that it's a fair use. Then, 10 years later they use Egg Man in a TV commerical to promote their tour? Now it's an ad, is it no longer a fair use?
I guess that's why you look at all this on a case by case basis, but it seems to me that the practical effect of all this is free advertisement for this company, plus the possibility of this coming back to haunt samplers in the future. I admittedly haven't thought too deeply about this particular scenario but my knee jerk is that these types of cases have the potential to do some real harm to muscians who sample. I hate to see muscians who sample suing other people for copyright infringement in general. I think it sends the wrong message.