Girls

[Sir SkratchaLot]

Originally Posted by JohnnyChavello

The hiatus is back off ... again. Beasties file a response and counterclaims to Goldieblox's declaratory judgment suit alleging copyright and trademark infringement, misappropriation of the right of publicity, and other claims.

Story and filing here.

Aren't they trying to play both sides of the coin here? In fact, based on the Biz Markee case, it would seem this Girls commercial has a better shot at fair use defense than the Beastie's have in their other current suit.

[Sir SkratchaLot]

Will the fact that it's a commercial make the difference??? Hmmmm. Could be pretty interesting. Is a flat-out commercial treated differently from a song made for commercial purposes? The Beasties get into the most interesting copyright suits.

[JoLovesMCA]

That move appears to have been insufficient. The Beastie Boys' new lawsuit, filed in a California court, claims the GoldieBlox video has caused "injury to [the group's] business, good will and property". The hip-hop act is claiming it is "entitled to recover from GoldieBlox the gains, profits and advantages [they have] obtained as a result of [their] wrongful conduct", or an award of statutory damages for the alleged wrongful conduct.

In a statement obtained by the New York Times, GoldieBlox's lawyer, Daralyn Durie, said they were reviewing the new legal brief. "Although the ad has been taken down and we would prefer an amicable resolution, we strongly believe that the parody constitutes fair use," she said.

Do you know how much great publicity that Goldieblox is getting? I’ve seen many new interviews with the founder of Goldieblox on their company, their history, how they got started, photos etc…. so yeah I am glad they are counter-suing. The lawsuit lists Dechen Yauch and we all know she is executor of Adam’s estate so this is still a three party deal where the Beasties are concerned.

I know a lot of fans though say they are tired of the whole thing, well I am sure they are too.

What information does the lawyer have that supports it is indeed fair use though. That's where I am confused.

[JohnnyChavello]

Originally Posted by Sir SkratchaLot

Aren't they trying to play both sides of the coin here? In fact, based on the Biz Markee case, it would seem this Girls commercial has a better shot at fair use defense than the Beastie's have in their other current suit.

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.

[pm0ney]

They are using a Beastie Boys song illegally to sell shitty toys and they should be sued. Period. Who cares about the "message" they are sending? Beastie Boys are 100% in the right.

[Sir SkratchaLot]

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.

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.

[JohnnyChavello]

Originally Posted by Sir SkratchaLot

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?

It is more complicated than just whether or not it's commercial. 2 Live Crew's use was commercial, but it wasn't advertising. What the court is saying in Campbell is that a use in advertising is less likely to be considered fair, and therefore, even further down the scale of what is considered to be a "commercial" use.

In a case decided after Campbell, a circuit court decided whether or not a parody of Demi Moore's naked and pregnant Vanity Fair cover photograph was infringed by a poster for Naked Gun 33 1/3. In that case, the court talked about the language in Campbell that suggests that the use of a copyrighted work, "even in a parody," "to advertise a product" is less likely to be considered a fair use. They actually found that the poster (an advertisement) was a fair use, but drew another line, suggesting that they were somewhat persuaded by the idea that the advertisement was connected to an artistic work (a movie) and, by implication, it would be harder to reach the same result if it were an advertisement for a consumer product, which is what Goldieblox is, a product. So, Goldieblox is now even further out on the limb of what's considered to be commercial. It's still an open question, and I know a lot of very smart people who've disagreed with me about this specifically, but I don't think there's any question that it's even more commercial than either Campbell or the Naked Gun case and commerciality is still an important part of the law in fair use cases.

Beyond the current law, recognizing a strong distinction between artistic expression and mere advertising is crucial for artists. Blurring that line will actually make it harder for musicians and others to argue that their work is entitled to greater protection and if all works are treated the same, my expectation would be that over time, fair use will contract as a response to the broader scope, and both artistic works and purely corporate works will be negatively affected.

It's hard to understand the lack of skepticism people have now about advertising. A lot of people see this ad as an artistic work in it's own right and not a vehicle for a message that's intended to create goodwill, resulting in the sale of toys, and that's strange to me. In my opinion, that's just not how advertising works. Companies would (and did, for a long time) use the opposite message (sexism) to sell products. Their actual connection to the message is always utilitarian.

[Sir SkratchaLot]

Originally Posted by JohnnyChavello

It is more complicated than just whether or not it's commercial. 2 Live Crew's use was commercial, but it wasn't advertising. What the court is saying in Campbell is that a use in advertising is less likely to be considered fair, and therefore, even further down the scale of what is considered to be a "commercial" use.

In a case decided after Campbell, a circuit court decided whether or not a parody of Demi Moore's naked and pregnant Vanity Fair cover photograph was infringed by a poster for Naked Gun 33 1/3. In that case, the court talked about the language in Campbell that suggests that the use of a copyrighted work, "even in a parody," "to advertise a product" is less likely to be considered a fair use. They actually found that the poster (an advertisement) was a fair use, but drew another line, suggesting that they were somewhat persuaded by the idea that the advertisement was connected to an artistic work (a movie) and, by implication, it would be harder to reach the same result if it were an advertisement for a consumer product, which is what Goldieblox is, a product. So, Goldieblox is now even further out on the limb of what's considered to be commercial. It's still an open question, and I know a lot of very smart people who've disagreed with me about this specifically, but I don't think there's any question that it's even more commercial than either Campbell or the Naked Gun case and commerciality is still an important part of the law in fair use cases.

Beyond the current law, recognizing a strong distinction between artistic expression and mere advertising is crucial for artists. Blurring that line will actually make it harder for musicians and others to argue that their work is entitled to greater protection and if all works are treated the same, my expectation would be that over time, fair use will contract as a response to the broader scope, and both artistic works and purely corporate works will be negatively affected.

It's hard to understand the lack of skepticism people have now about advertising. A lot of people see this ad as an artistic work in it's own right and not a vehicle for a message that's intended to create goodwill, resulting in the sale of toys, and that's strange to me. In my opinion, that's just not how advertising works. Companies would (and did, for a long time) use the opposite message (sexism) to sell products. Their actual connection to the message is always utilitarian.

Good post. I think the argument that this advertisement is more commercial than the 2 live crew joint or the Naked Gun poster is probably a winner. I also agree its a close call on how this ends up. These days the line between what's a commercial and what's art is getting pretty blurry. And I'm sure the Court is going to consider the social statement being made in this one. An ad for a hamburger would probably get even less protection. I also don't see how this really hurts the Beasties, other than it reminds people of a cut they aren't that proud of anymore (maybe I'm jumping to conclusions there.) I think that the best argument they have is that viewers may think the Beasties endorse the product and the use of their song it, which is not the case and it goes against their wishes to have their songs used in advertisements. But I don't see anything in the add that necessarily leads me to believe that the Beasties are supporting this. At the end of the day though, it's an advertisement to sell toys!

Anyway, you make a good strong argument. I'm fairly convinced from a legal perspective. The more that I think about it's a good test case. They likely don't have any problem with the social message being sent. It's not like their song is being used to sell guns, or used on the campaign trail for some politician they disagree with. It appears as though they agree with the core speech, but that they just don't want their music being used in advertisements regardless of the nature of the speech (unless the advertisement is to promote their own music). It's actually a pretty intellectually honest position.

[KENNY GUIDO]

I emjoyed it. I don't think you can copyright "girls". But if weird al can do it, iI'm sure anyone else can. Didn't rick rubin and ad rock write the song?

[Megalon X]

Originally Posted by KENNY GUIDO

I emjoyed it. I don't think you can copyright "girls". But if weird al can do it, iI'm sure anyone else can. Didn't rick rubin and ad rock write the song?

Even the Happy Birthday Song is copyright protected. Of course you can!

[Lyman Zerga]

Originally Posted by Sir SkratchaLot

I also don't see how this really hurts the Beasties

except for people calling them butthurt, bullies etc. now

[pm0ney]

Originally Posted by KENNY GUIDO

I emjoyed it. I don't think you can copyright "girls". But if weird al can do it, iI'm sure anyone else can. Didn't rick rubin and ad rock write the song?

The two examples are apples and oranges.

Weird Al wrote parodies and the artists he parodied received royalties from the profits of those parody records. On top of that, he always got permission from both the artist and more importantly their record label (except the well documented Coolio spoof.)

This is a blatant advertisement by a toy company to sell their shitty chachkies that is changing the lyrics of a song they never asked permission to use.

[Micodin]

After toy company GoldieBlox used the Beastie Boys' song "Girls" in an ad, the Beasties sued due to copyright infringement. According to The Hollywood Reporter, the two parties have come to a settlement, the terms of which are unknown. The case has been dismissed.

The company initially made the argument that their commercial parody of the "highly sexist" song was covered under the Fair Use Doctrine. The band disagreed, arguing that it was copyright infringement. Adam Yauch's will prohibited the use of Beastie Boys songs in advertisements. Shortly after Yauch died, the band sued Monster Energy Drink for illegally using their music.

source

[MrSmiley1]

Originally Posted by Micodin

After toy company GoldieBlox used the Beastie Boys' song "Girls" in an ad, the Beasties sued due to copyright infringement. According to The Hollywood Reporter, the two parties have come to a settlement, the terms of which are unknown. The case has been dismissed.

The partial details didn't take long to come out

GoldieBlox "has to both issue a public apology and kick over a portion of its revenues to charities selected by the Beastie Boys, benefitting science, technology, engineering, and mathematics education for girls"

Source

[Micodin]

Originally Posted by MrSmiley1

The partial details didn't take long to come out

GoldieBlox "has to both issue a public apology and kick over a portion of its revenues to charities selected by the Beastie Boys, benefitting science, technology, engineering, and mathematics education for girls"

Source

Whoever posted this in the talkbacks is a genius.

"The Beastie Boys issued a statement hoping the charitable donation would help young women get science for any occasion, postulating theorems, formulating equations."

[Sir SkratchaLot]

Originally Posted by MrSmiley1

The partial details didn't take long to come out

GoldieBlox "has to both issue a public apology and kick over a portion of its revenues to charities selected by the Beastie Boys, benefitting science, technology, engineering, and mathematics education for girls"

Source

That's excellent!

[abbott]

[MrSmiley1]

Originally Posted by Micodin

Whoever posted this in the talkbacks is a genius.

"The Beastie Boys issued a statement hoping the charitable donation would help young women get science for any occasion, postulating theorems, formulating equations."

I know! I saw that and laughed my butt off. Glad someone here saw it and appreciated it as well.

[MrSmiley1]

Goldie blox just posted the public apology at the bottom of their website's main page.

"We sincerely apologize for an negative impact our actions may have had on the Beastie Boys. We never intended to cast the band in a negative light and we regret putting them in a position to defend themselves when they had done nothing wrong. As engineers and builders of intellectual property, we understand n artist's desire to have his or her work treated with respect. We should have reached out to the band before using their music in the video. We know this only one of the mistakes we're bound to make as we grow our business. The great thing about mistakes is how much you can learn from them. As trying as this experience was, we have learned a valuable lesson. From now on, we will secure the proper rights and permissions in advance of any promotions, and we advise any other young company to do the same."

[JoLovesMCA]

I am surprised they apologized after they went out of their way to say they did nothing wrong. Wonder if they really mean this or if their lawyers advised them it would be best to do.

Who cares I guess, it least they admitted their mistake.

[Michelle*s_Farm]

This is my fave quote -- happy days:

"One thing the company will learn is the Beastie Boys' favorite charities, as part of the settlement includes a payment by GoldieBlox, based on a percentage of its revenues, to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls."

Read more: http://www.rollingstone.com/music/ne...#ixzz2wW2IaUTO

[Documad]

Originally Posted by JoLovesMCA

I am surprised they apologized after they went out of their way to say they did nothing wrong. Wonder if they really mean this or if their lawyers advised them it would be best to do.

Who cares I guess, it least they admitted their mistake.

The company apologized because that's what the Beasties demanded in order to settle the lawsuit.

It's a shame that the company sue the band when the company was the one in the wrong. The settlement looks like a clear victory for the band. I wonder how much the Beasties had to pay their attorneys.

[Michelle*s_Farm]

Originally Posted by Documad

The company apologized because that's what the Beasties demanded in order to settle the lawsuit.

It's a shame that the company sue the band when the company was the one in the wrong. The settlement looks like a clear victory for the band. I wonder how much the Beasties had to pay their attorneys.

My guess is that they have a few attorney friends who would practically do this work for free or for a modest fee (e.g., an original country mike LP).

[JohnnyChavello]

Originally Posted by Michelle*s_Farm

My guess is that they have a few attorney friends who would practically do this work for free or for a modest fee (e.g., an original country mike LP).

I'm sure they do, but they were represented by Sheppard Mullin (at least with respect to the GoldieBlox suit). Attorneys fees may have been part of the settlement, though.

[KENNY GUIDO]

ok, theres a movie coming out, forgot the name of it...coming out and during the commercial for the song, they are playing a beastie boys song. now i know when they play a song to promote a movie, chances are the song is never on the soundtrack or even in the movie.

doesnt this fall in the same lines of what adam did now wants? thier music promoting a movie?

[Lyman Zerga]

bad words?

[Michelle*s_Farm]

Originally Posted by KENNY GUIDO

ok, theres a movie coming out, forgot the name of it...coming out and during the commercial for the song, they are playing a beastie boys song. now i know when they play a song to promote a movie, chances are the song is never on the soundtrack or even in the movie.

doesnt this fall in the same lines of what adam did now wants? thier music promoting a movie?

I do not understand your question. Film is art and being associated with another artist is not an ethical problem unless you do not support the art or the artist. For example some people would want their their music in a Lars Von Trier film and others may not (e.g., a Christian Rock artist may be offended by Lars' work). Presumably when the production / marketing company requests for the music to be included on a score, soundtrack or promotional materials the Christian Rocker would say "no thank you".

This is a good article on the subject of music, advertising and 'selling out' by one of my favourite bands Yo La Tengo:
http://pando.com/2013/09/17/yo-la-te...t-selling-out/

No one wants to be a "sell out"
http://en.wikipedia.org/wiki/File:Th...lbum_front.jpg