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back to article You gotta fight for your copyright ... Beastie Boys sue toymaker over TV ad

Hip-hop heroes the Beastie Boys aren't impressed by toymaker GoldieBlox's climbdown in their rather bizarre copyright dispute – which started when the building-block company used the band's music in an ad. The MCs have now filed a countersuit against the venture-capital-bankrolled toy biz, which sued the Beasties after …

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Not entirely sure how I feel about this. If the Beastie Boys had just sued to begin with then I'd be more on the side of GoldieBlox, but considering GoldieBlox apparently lied about the Beastie Boys suing them as a way to drum up more attention for their product I'm not entirely sympathetic now that the Beastie Boys have decided to take up that suggestion.

Of course, this is completely irrelevant to whether there's a valid parody exception here, which there might well be. I just can't help but feel GoldieBlox is being a bit scummy in the way they're handling this

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Anonymous Coward

"GoldieBlox has instead developed an advertising campaign that condones and encourages stealing from others."

Really - how does it do that? At the worst surely this is just copyright infringement?

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@ SolidSquid

Both sides are playing a PR game. Having once been twice embroiled in trademark disputes for a non-profit, I can tell you that the lawyer always writes the letter to the accused and always mentions court action - even if you as the rights holder LIKE what they did. If the accused responds appropriately (sorry, what can we do to make this right?) you can negotiate an amicable deal. In the first instance the accused did so and we said all they needed to do was note we were the owners of the trademark. We may have charged them a nominal $1 fee at the lawyers insistence. Something about needing an actual exchange of monetary value before the agreement became enforceable.

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Yeah, Im on the fence too. This kinda product is needed to blast some of the fixed gender roles we still haven't fully exterminated... so on that basis I think it sounds like a good product, and the song seems to be a perfect fit... I want them to be successful at least in selling the product.

But they used the song without permission. thats a deal breaker.

I really hope they do settle in some way that protects the beastie boys rights, and get this product out in the hands of impressionable kids.

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Hmm so the toymaker parodied (seemingly legally) a BB song. BB wrote to them and said we don't like it please stop. The toymaker then sued BB 'preemptively', BB then sued to toymaker.

All over something that is legally protected (parodies). I can however see the logic in only allowing parodies for non commercial use, i.e. a comedy sketch not an advert \ commercial.

This is also a superb example of why lawyers should all get 24 hours WOO.

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Re: @ SolidSquid

PR Game? It's not a game! The Beastie Boys are set to lose¹ hundreds of pounds through having their forgotten music exposed to the public like this!

¹make

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"This kinda product is needed to blast some of the fixed gender roles we still haven't fully exterminated."

People get FAR less disturbed by seeing girls doing engieering stuff than they do seeing boys playing with dollies.

Seriously. Girls doing mechano/lego has _always_ been "OK" - but if little bobby starts playing with the "girly stuff" then hands and eyebrows are raised in horror.

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I'm with the beasties on this one

If GoldieBlox had behaved in any reasonable manner, I'm sure the BBs would have been much more receptive to an amiable solution, but for them to file a pre-emptive lawsuit was cynical and appalling. Take 'em for every penny you can boys.

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Re: Take 'em for every penny you can boys.

Except they can't actually as they will soon find out. There's a very, very broad parody exception in the US.

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Re: I'm with the beasties on this one

Agreed - it could also be seen negatively by the courts, and the BB's could file cease and desist, and ask for punitive damages, as well tie them up in the courts so long with no product to sell (because it would be an indeterminate loss of value of their name) Pushing them well past the holiday buying season. Or request a court date as late as MAY 2014.

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Gav

Re: I'm with the beasties on this one

"I'm sure the BBs would have been much more receptive to an amiable solution, but for them..."

You seem to know a lot about the Beastie Boys own thoughts on the matter. Things they have neither said or hinted. Are you just guessing?

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@Tom ... Re: Take 'em for every penny you can boys.

How is this a parody?

I don't disagree with your assessment, but at what point do you draw the line between a parody versus a blatant rip off.

I'll be honest. If I were in the jury, I'd side with the Beastie Boys.

They aren't doing a parody, but are selling a product.

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Re: @Tom ... Take 'em for every penny you can boys.

Greedo shot first.

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Anonymous Coward

Re: @Tom ... Take 'em for every penny you can boys.

yeah, I wouldn't say this was parody, it's reworking a song a little for advertising purposes, it's no weird al.

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Re: I'm with the beasties on this one

The BB's have stated that no-one may ever use any of their songs in commerce, and in particular Adam Yauch made that a condition, and he's dead so can't change his mind.

So anyone claiming that they would have been more receptive is, bluntly, wrong.

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Re: @Tom ... Take 'em for every penny you can boys.

How is this a parody? The words have been changed to convey the exact opposite of the original, which is pretty much the bellwether definition of a parody...

There's a lot of retro-justification which says that the original version was ironic, therefore there is no change in message (ironic "girls are good for nothing but serving boys" -> non-ironic "girls are good for STEM"), but there's also a fair amount of opinion that the original version wasn't actually ironic.

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Anonymous Coward

Re: Take 'em for every penny you can boys.

But it really isn't a parody though. What they did was more a less a cover song and thus they are subject to penalties. Even if the song was a parody, they are using a song to sell a product. Sure Weird Al and the likes made money on selling a parody song, but music is not the same as a physical tangible product.

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Anonymous Coward

Re: @Tom ... Take 'em for every penny you can boys.

Changing the lyrics to the opposite doesn't make it a parody. Did Weird Al just change the lyrics to the opposite? He made Beat it to Eat it. Addicted to Love was Addicted to Spuds. Mony Mony was Alimony.

Gangsta's Paradise was Amish Paradise. Another ones bites the dust was Another one rides the bus. Bad was Fat. Weird Al did more, he made the song sound similar but with different lyrics and just not a few changes. Maybe you should have represented Vanilla Ice as all he did was create a parody of Under Pressure.

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Re: @Tom ... Take 'em for every penny you can boys.

This was commercial use, not parody.

A parody is making fun of something, usually with some kind of reason/message in it.

This was using a crap version of the music with replaced lyric to sale a product, ie advertising.

The BB have a really good point that the PREEMPTIVE lawsuit by the toy maker is just a way to get even more publicity out of the affair is proof of ill will.

I hope they bankrupt the backers of that business.

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Re: I'm with the beasties on this one

This article doesn't tell the whole story. As I understand it, the Beasties have an agreement that their music will not be used in ads, end of story. As one of the band members has since croaked (MCA, cancer) that agreement will be sort of semi-sacred in the minds of the other members.

The timeline, I gather, goes something like:

>Company produces ad

>Beasties politely (for them) asks that the ad be withdrawn

>Company launched pre-emptive suit against the Beasties

>Beasties launch counter-suit

My sympathy is wholly for the Beasties in this case. GoldieBlox have acted like dicks throughout and have gained lots of free publicity because of it. If someone nicked my stuff and then launched the lawyers at me first I'd be pretty pissed off too. Hope they win.

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Anonymous Coward

Seems like this advert is dual function... paradoxical art and a commercial advert. So perhaps, it fails on the second account.

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> Seems like this advert is dual function... paradoxical art and a commercial advert. So perhaps, it fails on the second account.

This seems to resonate with my opinion. It would seem to me that the parody exception probably wasn't intended to include commercial exploitation in the way that this clearly is. If that were the case, then using any copyrighted work for any reason without permission would be enabled merely by taking the piss out of it.

If parody is the prime consideration, then I can see the value in an exemption. However, if commercial exploitation is the primarily aim, and the parody is a mechanism used purely to avoid copyright licensing, then that seems pretty cynical to me.

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In the US, parody is still permissible use even if the parody is for profit (see the novel "The Wind Done Gone") or for advertising (see the Leslie Nielsen parody of the Energizer Bunny in TV ads for Coors beer).

The US parody exception to copyright law is VERY broad, and is not Invalidated just because the parody is used for advertising or marketing.

Of course, there's a lovely bit of irony here; the Beastie Boys copied the melody from that particular song from another song, and prevailed on "fair use" grounds.

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Parody exception

I can't wait to start selling my Dan Brown "parodies" - which are a Dan Brown book with a cock and two balls scribbled on the front page in biro. It's a parody, see? A transformative work! So you can't catch me.

Once a parody exception to copyright has been introduced then it will be impossible to stop anyone doing this. Draw a moustache on Nigella - and sell your own Nigella books. They're a parody too.

Give it a year or two of lawsuits and this will be quietly repealed, with the fucktard civil servants who brought it in retiring nicely on a million pound final salary (oops - "Career Average") pension.

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Anonymous Coward

Re: Parody exception

You haven't seen the advert, then?

All of the lyrics were changed, and while not exactly poetry that could launch a thousand ships it's still got more complex lyrics than many modern songs.

If they'd just sampled 'Girls' then yeah, it'd be wrong. But redoing it completely from the ground up, flipping a lot of the sexist stuff in it (or, rather, being more obvious in it's anti-anti-female message) including doing an advert that's not a blatant rip-off of the original music video? IF they hadn't sued first I'd support them in this.

As an example, Pride and Prejudice and Zombies is a different work, because it presented a new take on the original story. Pride and Prejudice with a cock and balls scrawled over Mr Darcy's crotch wouldn't be because the content hasn't changed at all. Even a cock-and-balls on every page wouldn't be a different work as the story is the same.

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Anonymous Coward

Re: Parody exception

Even a cock-and-balls on every page wouldn't be a different work as the story is the same.

No, but if you'd been to right college you could call it conceptual art and sell it for a fortune ...

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Re: Parody exception

except maybe that pride and prejudice is in the public domain and anyone can do anything they like with it now. Not a great example there.

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Re: Parody exception

"except maybe that pride and prejudice is in the public domain and anyone can do anything they like with it now. Not a great example there."

"Barry Potter" or "The Hunger Pains" as published by the Harvard Lampoon, not to mention "The Wobbit", which has managed to outdo a small (but very fine) Southampton pub in not getting sued for blatantly riding on the back of the franchise.

Massive franchises parodied for commercial gain by HL.

No reason why a parody song could also not be used for commercial purposes whatsoever. Al Yankovic has built a career from doing it (although he always get permission as a personal rule, but he doesn't need to).

Campbell v. Acuff-Rose Music found commercial parody can fall under fair use. It does not automatically do so, but the argument's "it's an advert, there's the problem" do not hold water.

How Goldieblox have handled themselves with pre-emptive lawsuits and the rest is pretty dodgy, but parody for commercial usage? Go nuts.

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@rh587 wrt: Campbell vs Acuff-Rose Music

"Commercial use" is too broad a banner here.

In Campbell vs Acuff-Rose Music, the parody itself was a commercial product, In this case, the parody does not exist as a standalone work -- it exists only within the advert, and the advert as a whole is not a parody, and the product that it is selling is not a parody.

If the song has no existence outside of the advert, the song isn't likely to be considered a "work" at all -- consider that US courts have already established precedent stating that the tune and lyrics of a song are a single work, so both composer and lyricist receive royalties for (and can block the use of) instrumental versions and lyric sheets.

That's what the BB's lawyers will be arguing, and I think they'll win.

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Re: @rh587 wrt: Campbell vs Acuff-Rose Music

Utter tripe: "if the song has no existence outside the advert"!

You may want to check up on copyright law.

The fact that the motive behind the creation of the work was for commercial gain (selling other stuff) as opposed to commercial gain (selling records) is only a minor consideration, at least per the US Supreme Court. To consider otherwise would be ridiculous, because you would have to judge the motives of each creator.

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Re: @rh587 wrt: Campbell vs Acuff-Rose Music

Utter tripe? {citation required}

There have been various cases in the US which have established that two things that might be considered individual "works" are only considered individual works if they have been conceived independently. I'm thinking mostly lyrics and tune here -- there have been several cases where lyricists have claimed royalties for instrumentals, because the tune is merely a part of the "work": the song.

So while I am arguably wrong, I am not undoubtedly wrong. If I was a lawyer (I'm not) and you were a lawyer (I'm pretty sure you're not) and we were arguing against each other in court, I hope you wouldn't address my arguments with "utter tripe". (Actually, scratch that, it would be nice for my opponent to be found in contempt...)

I'm not against people proving I'm wrong, but proving requires proof....

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Re: Parody exception

Pride and Prejudice with a cock and balls scrawled over Mr Darcy's crotch wouldn't be because the content hasn't changed at all.

Pride and Prejudice is out of copyright.

You don't understand what a copyright exemption means - even though the clue is in the name. It is a specific use of a copyright work where those rights cannot be asserted. Think of it as being "out of copyright" for that particular use. Your test is irrelevant because the copyright holder cannot apply it.

So my Dan Brown example is accurate. I can do anything i want if I call it a parody.

Welcome to the real world!

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Anonymous Coward

Here's my thoughts...

Parody is no problem, Attempting to profit from that parody by using as part of an advertising campaign is where the problem lies.

Especially when the subject of the parody is well known for not wanting his work to ever appear in advertising.

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Pretty much my thoughts too

Nothing wrong with parody, pastiche is a substantial part of humour and culture and should remain so. Pantomimes have made jokes based on well known adverts for hundreds of years, for instance, and jesters would act in parody.

What I think is wrong in this case is that the parody is arguably using over 50% of the original and using it as the main part of their commercial project.

What I think is wronger in this case is that some cokehead ad execs will be congratulating themselves on their clever viral campaign and taking credit for mostly theft. Fuck 'em.

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Re: Pretty much my thoughts too

Since almost all parody produced today is ultimately for commercial gain that seems like a pretty silly argument. I never heard anyone complaining when Spitting Image were producing their parody albums doing exactly what the Beastie Boys are complaining about here.

In fact, I think this is far more defensible than actually selling the song itself. It's unarguably transformative, has absolutely zero impact on the commercial value of the original, uses only a small subset of the original work, and considering the opposite intent of the new lyrics it probably qualifies as parody (in this case of the song, rather than the artist.)

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Headmaster

Re: Pretty much my thoughts too

"wronger" ?

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Re: Pretty much my thoughts too

@JeevesMkII

"Since almost all parody produced today is ultimately for commercial gain that seems like a pretty silly argument."

I think the difference here is that a parody is a work of art that has commentary or political expression as its primary reason for being.

This song has no existence independent of the advert, therefore its primary reason for being is clearly to be part of the advert and to sell a product that is not itself parody.

If the song had been written independently, and they'd picked it up to use in the advert after the fact, they'd maybe have a case, but that's not what happened, so its a rip-off.

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(Written by Reg staff) Silver badge

Re: Re: Pretty much my thoughts too

JMII: Do you really think the "original intent" of the Beastie Boys Girls was to be sexist? That it was a sexist song?

Woah.

Maybe this parody thing is more complicated than any of us imagined!

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Re: Pretty much my thoughts too

Yes, 'wronger', playing with the language. It was deliberate, taking its template from the paragraph it preceded. Of course 'wrong' is an absolute, which is why it's a nonsense to '-er' it. The glory of the English language is that you can play with like this.

I'm no Edward Lear or Lewis Carroll of course, but grant me some space!

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Re: Pretty much my thoughts too

Bingo.

And the other factor that has many folk all riled up was, equally, justifiable: the rights agents for the Beastie Boys sent a threatening "cease and desist" letter, and in my world if you're not prepared to deal with the consequences of your threats, you shouldn't make them. In this instance, the toy company went to court to get a ruling that they were NOT infringing, which seems like the appropriate response to threats based on the accusation that they were.

Plus, when the toy company DID back down, what did the people who issued the threats do? They filed suit.

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Re: Pretty much my thoughts too

Your entire argument fails on an baseless argument: that you believe that the "creative motive" matters. Plus the fact is that the advertisement _as an advertisement_ has a "commentary or political expression" as its core: the (socially sound) idea that STEM for women is A Good Thing. Despite your pontification, in the USA corporations have free speech rights, and corporations can be argued to be ALWAYS selling something whenever they speak, so the entirety of your argument fails.

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Re: "original intent"

@A.O No, but unless you seriously want a court case to turn on whether a jury of Americans thinks a joke is funny, I'd stop asking awkward questions.

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Devil

Burp!

Well, I like The Beastie Boys, and I also like companies that produce building "blox" in pastel colours designed to encourage girls to become engineers even if they do have illustrations on the box depicting girls as Disneyifed wide-eyed demi-princesses, but which is better?

There's only one way to find out.

LITIGATE!

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Re: There's only one way to find out.

Also: Googlefight.

Beasties: 27,700,000

Goldiblox: 3,770,000

in case anyone's interested.

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Pint

Seems the company have been pretty shonky in the way they acted but there is a certain irony in a group that prided themselves on being anti-establishment and subversive* when they started out have become increasingly 'establishment' in their outlook.

*just how anti-establishment and subversive the BBs were in the 80s is a whole different argument

Fwiw parody or otherwise the company have appropriated the BB 'music' for commercial gain so I'd reckon the BBs have a good case.

Beer because its Friday obviously!!

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Anonymous Coward

prided themselves on being anti-establishment and subversive

Well, as you imply in your footnote, they were about as anti-establishment as The Macc Ladds, Goldie Lookin Chain or any other "comedy" pop band back in the 1980s. Then they realised that their frat boy humour wasn't going to translate into a long term music career, so they set about becoming a white Run DMC. Of course, having relatives high up in the major label music business helped. So, not anti-establishment or subversive at all.

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Where would we be without parody...

Do you know, I heard a story that those Toastie Boys stayed up 'til quarter past twelve!

- Morris Minor and the Majors - No Sleep 'till Bedtime.

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Sorry, what makes them "increasingly 'establishment'"?

The fact that they're trying to maintain a personal artistic decision on how and when their music gets used? As opposed to that typical "anti-establishment" tendency to license it out for big spondoolicks to all comers for their TV spots?

Or maybe it's the fact that they're using the legal process to seek remedy rather than kicking down the offender's door and defecating in his fireplace?

Plenty of anti-establishment figures have used the judicial system to protect their anti-establishment stance. Those that don't aren't just "anti-establishment", they're anarchists. And anarchists are often just thoroughly antisocial selfish people by another name.

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Pirate

It seems an odd definition of "parody"

It's not parody as I see it; it's simply taking someone's tune and changing the words to promote their business and commercial products and hoping to get away with that. To then sue the creators of the original song because they weren't happy with that takes the biscuit.

I am not entirely sure on what principle the EFF seems to think this is okay. Perhaps they have re-branded and one of the F's now stands for Freetard? I am sure some would say it simply reflects the 'we can take anything we want, and fuck you' attitude which has been attributed to Google.

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Re: It seems an odd definition of "parody"

But in the US that is pretty much the legal definition of parody because humor itself is always in the eyes of the beholder.

Maybe it isn't fair. Maybe the law ought to be changed. But at the moment it is the law. And that's all the principle the EFF needs.

Honestly, I've always been uncomfortable with this definition. That same group I referenced earlier has held a major event every year. And every year one of the most popular program items rests entirely on that definition. That program item is fan parody music videos. The group pays the fee for the music. The videos are all remixes cuts of various videos to the music, sometimes for humor, sometimes for drama. But the only thing original in it is the arrangement of the clips to the music. You'd probably say that isn't earning the group or the fan artists money. But legally that doesn't matter if it dilutes the value of the original work. And when the non-profit has a multi-million dollar budget they are quite actionable in court. And yeah, that one of the things I'm happy I no longer have to worry about since I'm no longer affiliated with the group. But while I was there I became intimately familiar with some of the finer points of this US law.

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