GoldieBlox, Inc., the start-up toy company that appropriated the musical track of the Beastie Boys song, “Girls”, into its ad campaign, is really off on the wrong foot. In its declaratory relief action, GoldieBlox asserts that its use of the Beastie Boys tune is permitted “Fair Use” under the Copyright Act because it is a parody of the original song. It makes some reasonable arguments, attempting to demonstrate in its complaint that it has transformed the original song by fundamentally changing the tone of the original, from a misogynistic put-down of girls, to a song of empowerment and might.
However, as expected, the Beastie Boys responded to GoldieBlox’s complaint for declaratory relief with their own counterclaims, alleging copyright and trademark infringement, unfair competition and misappropriation of publicity rights. Supreme Court precedent provides that strictly commercial use is not, per se, a copyright infringement, provided that the new version sufficiently transforms the original version. The claim of Fair Use as parody doesn’t look like a particularly close call: GoldieBlox has used the entire musical track in its advertisement, rather than only parts of the original, even though it has substantially changed the lyrics and the message of the original, and attached visual images vastly different from the Beastie’s version.
GoldieBlox has pulled the Beastie’s song from its “Girls” ad, but it stopped well short of apologizing. Indeed, its poor-pitiful-me open letter to the Beastie Boys offered to withdraw its lawsuit – if the Beastie Boys drop their infringement claims. So, the battle lines are being drawn to determine whether the GoldieBlox use of “Girls” amounts to “Fair Use”. The Court has entered an order intended to push the parties into Alternative Dispute Resolution, and it’s certainly conceivable the parties will resolve the dispute either at mediation/arbitration, or through a negotiated settlement. As of this posting, the Beastie Boys’ record label, distributer, producer and publisher have not yet responded to the complaint.
The Beastie’s answer, however, also alleges that the GoldieBlox ad campaign has appropriated the music and/or lyrics of popular songs by other recording artists, including Queen, Krewella and electronic acts Daft Punk and Avicii. In the unminced words of the answer: “Unfortunately, rather than developing an original advertising campaign to inspire its customers to create and innovate, GoldieBlox has instead developed an advertising campaign that condones and encourages stealing from others.” These allegations, if true, will invite additional litigation by those songwriters, publishers, artists, labels, etc.
The unauthorized use of Queen’s “We Are the Champions”, Daft Punk’s “Around the World” and Aviici’s “Wake Me Up”, for example, sound like slam dunk infringements to these ears. There appears to be little if any modification of the original tracks that would even suggest a transformative use. It’s difficult to imagine a plausible “Fair Use’ claim with these songs. To date, no litigation has been filed by interest holders in these other songs. When these suits inevitably come, GoldieBlox better hope its war chest is adequate.