Stanford-educated Debbie Sterling’s start-up toy company, GoldieBlox, has a singular mission: “nothing less than to help close the gender gap in the fields of science, technology, engineering and math by encouraging young girls to build and invent amazing things.” At least that’s how GoldieBlox presents itself in its preemptive strike law suit for declaratory relief, filed last week against the Beastie Boys, Rick Rubin, the Beasties’ label, publisher, and others.
The GoldieBlox ad campaign appropriates the musical track (although re-recorded) to the song “Girls”, from the Beastie Boys’ 1987 LP, “Licensed To Ill”. The GoldieBlox version, though, substitutes new lyrics of girl empowerment, debunking traditional stereotypical roles, while the accompanying video follows a multi-racial trio of young girls as they execute an elaborate Rube Goldbergian contraption running throughout a house and yard, presumably as a result of playing the GoldieBlox game. When the (surviving) Beasties (who have a well-established policy of not permitting their songs to be used in product ads) learned of the use of their song in the GoldieBlox commercial, they apparently politely asked GoldieBlox whatever in the world it might have been thinking to use their song without permission.
After the suit was filed, in an open letter to GoldieBlox, Mike D and Ad-Rock feigned outrage, whining, “When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US”. Well, yes. But. GoldieBlox says that its version of “Girls” is a parody of the original, and is therefore protected under the Fair Use Doctrine of the Copyright Act.
GoldieBlox’s declaratory action (where a party to a “justiciable controversy” asks the court to define the rights of the parties) is skillfully drafted to set up the parody defense. The complaint alleges that the lyrics of the Beastie’s version are misogynistic and chauvinistic, where “girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers. The girls are objects.” In the GoldieBlox lyrics, however, “girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. GoldieBlox Girls are the subjects; they are the actors taking charge of their environment.” Similarly, the accompanying video pokes fun at the original song, “to further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.”
In Campbell v. Acuff-Rose Music, Inc., the Supreme Court found that 2 Live Crew’s song parody “Pretty Woman” may be a “fair use” of Roy Orbison’s “Oh, Pretty Woman”, even though it had been used for commercial purposes. The Court held that the trial court must analyze each of the four statutory “fair use” factors, but they are to be weighed together in light of copyright’s purpose of promoting science and the arts. The Court clearly enunciated the “transformation” doctrine that has been applied since: “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” In the Campbell case, however, the Supreme Court noted that “as to the music, we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character, its transformative elements, and considerations of the potential for market substitution.”
GoldieBlox has lifted the entire musical track of “Girls”, not just some elements of it. Given the extensive copying of the Beastie’s music, in order to prevail against a copyright infringement claim (which will certainly be filed by the Beastie Boys as a counterclaim in the suit) GoldieBlox will attempt to show that the new work transforms the original. The GoldieBlox complaint clearly presents its transformation theory of the case. With the battle lines soon to be drawn, we’re likely to blaze new ground in the ever-evolving scope of the Fair Use Doctrine. This will be fun.