All I Really Want is Fair Use

Goldieblox is a toy company aimed at getting young girls interested in engineering.  To that end, they sell kits for Rube Goldberg-esque contraptions specifically marketed at young girls (containing lots of pink and pastel colors).  As part of their advertising campaign for these toys, Goldieblox released an ad set to the melody of the famous Beastie Boys song “Girls” with different lyrics in line with the company’s educational aims.  In response, the remaining Beastie Boys sued for copyright infringement.  Goldieblox responded with a motion for declaratory relief on the basis that their use of the melody of “Girls” is fair use.  

This blog has addressed fair use many times, listing the four factors each time.  Still, in the interest of clarity, the four factors are: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work (17 U.S.C. 107).  None of these factors allow a judge to find for or against fair use.  A lot of the analysis hangs on the specific facts of the case.

As in many fair use cases involving commercial parodies, a finding of fair use leans heavily on analysis of the first factor.  Analysis here requires the court to look at how transformative the use is, in addition to looking at the commercial nature of the alleged infringing work.  As stated in my Google Books post last week, a use is transformative if it adds a new and different element to the original work and does not supplant the original work.  The more commercial the work, the more transformative its use of the original must be.  Whether a judge would deem the work transformative depends heavily on how they view the change in lyrics.  The new lyrics clearly change the message of the song.  The original lyrics at the same part of the melody are: Girls — to do the dishes/ Girls — to clean up my room/ Girls — to do the laundry/ Girls — and in the bathroom/ Girls, that’s all I really want is girls.”  Goldieblox replaces those lyrics with: “Girls — to build the spaceship/ Girls — to code the new app/ Girls — to grow up knowing/ That they can engineer that/ Girls. That’s all we really need is girls.”  The change in lyrics is rather substantial and conveys a completely different message.  However, this use of the Beastie Boys song is still in a commercial attempting to sell a product.  That gives the use a highly commercial nature.  Such a use does not automatically result in finding against fair use, but it does work against Goldieblox.

Since the second and fourth factors will not figure substantially into any analysis in this case (both are fairly straightforward, since “Girls” is a creative work and the Goldeblox commercial is a parody of that work), let’s look at the third factor.  The third factor requires that the work claiming fair use not take more of the original than is needed.  Goldieblox probably does fair well with this factor, since parodies require a fairly substantial amount of the original in order to be recognizable.  Since their commercial requires the viewer to recognize the original Beastie Boys song, they can probably use the original melody as long as they change the lyrics.  Goldieblox did precisely that, so the court should find that the third factor favors fair use.

A court’s final judgment in this case depends on how they weight the commercial nature of Goldieblox’s parody.  Courts often allow commercial parodies to have fair use protection.  Goldieblox’s case is different that, say, Weird Al Yankovic’s.  Weird Al writes his own artistic parodies of other people’s music (he also asks for permission beforehand, but that’s another matter).  Goldieblox wrote a parody in order to sell more of their products.  A judge may view that as an inherently more commercial activity than a simple parody song, and find that that precludes fair use.  A judge may also decide that the Beastie Boys’ strong opposition to the use of their music in any commercial requires the judge to weight his analysis more in favor of the Beastie Boys.  As an illustration of this opposition, Adam Yauch (known in the group as Mike D., who passed away last year) actually included a statement in his will that he did not want his music used in advertising.  That opposition may alter a judge’s analysis, and also explain why Goldieblox did not simply ask for permission beforehand (or were unable to acquire such permission).  As with most fair use cases, a lot of the final judgment depends on the facts.

As a final aside, I just want to add that I got an opportunity to try out an Oculus Rift headset yesterday.  I figured that I’d give my preliminary review.  The device is amazing.  You really feel like you’re in the environment projected on the screen in the headset.  I spent about 30 minutes doing two activities: riding a roller-coaster and wandering around in Minecraft.  The Rift made it feel like I was actually in both worlds.  The device tracks your head movements and replicates them on the screen, which allows for the immersion.  On the roller-coaster, I even felt the sensation of speed as I was going up and down.  I can’t wait to get one of my own.

In the meantime, happy Thanksgiving (and Hanukkah, if you celebrate it)!



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