The Beastie Boys, who long ago renounced their earlier penchant for putdowns of women and girls, should have seen this as an easy way to move on, and maybe make amends for their own past misdeeds. But that would be too easy. Instead, on Dec, 10 they filed copyright and trademark charges against GoldieBlox. Because GoldieBlox uses “Girls” in a commercial aimed at selling toys, the complaint argues, the video cannot be fair use, and is therefore punishable as copyright infringement. The band also claims that GoldieBlox has violated trademark law by leading consumers to falsely believe the Beasties have endorsed GoldieBlox’s products.
Let’s start with trademark. The suit claims that the ad violates the band’s rights in their brand because consumers will think, mistakenly, that the Beasties sponsored or endorsed the GoldieBlox ad. (Which, to be honest, they should—but it may be too late for that.) This sort of “false endorsement” claim is well known in the trademark law, but it’s sort of nutty here. “Girls” was released in 1987, a depressingly long time ago. Which means that many people—and especially girls interested in GoldieBlox toys—won’t even associate the ad with the Beasties. There is little risk of false endorsement when most people don’t know enough to presume any sort of endorsement, false or otherwise. As one of our friends used to say, there are two sorts of fame: “regular famous,” and “Ben Franklin famous.” The Beastie Boys are regular famous. Which means that they’re already not that famous anymore.
For those oldsters who might understand the ad’s Beastie Boys reference, there’s a rather obvious reason they are unlikely to believe that the band has anything to do with the ad. The GoldieBlox version is a parody. Musicians are not usually eager to endorse parodies of their own songs, particularly parodies suggesting they are Neaderthals. In short, it’s pretty far-fetched to think that there is a real danger of false endorsement here.
The copyright claim is only a bit better. The GoldieBlox ad is not fair use, the complaint says, because it is … an ad. Put differently, the complaint says commercial uses are not fair uses. This notion is at odds with decisions in more than a dozen recent cases—including cases in the 9th Circuit, which covers California (where the Beasties’ case has been filed)—where a commercial use was held to be a fair use.
At this point someone will surely bring up that the Supreme Court, in Campbell vs Acuff-Rose Music, another musical parody case, said that “the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence” under the law than “the sale of a parody for its own sake.” (Campbell involved the remake [and parody] of Roy Orbison’s “Pretty Woman” by the 1990s group 2Live Crew.) But don’t make too much of this statement by Justice Souter. First, it’s what lawyers call dicta—that is, something wholly unnecessary to the holding in Campbell, and so of uncertain authority.
Second, the GoldieBlox ad is not primarily aimed at “advertis[ing] a product.” While there is a glimpse of a GoldieBlox toy at the very end, the video is really meant to garner publicity for GoldieBlox itself while spreading the company’s message that traditional girl toys aren’t all that great for modern girls. GoldieBlox’s reboot of “Girls” is a sort of “superparody.” It’s poking fun at the Beasties’ song. But it’s also linking the song to a specific and important social critique—that today’s girls’ toys reflect the same retrograde attitude toward girls that the song represents. If anything, parodies like GoldieBlox’s—which provide broad-based social commentary wrapped in a parody of a popular song—ought to be entitled to more deference than conventional parody sold “for its own sake.” GoldieBlox’s parody communicates a broad critical message—precisely what the fair use doctrine seeks to protect.
So the Beastie Boys should lose their lawsuit—although once the lawyers take over, anything can happen. Maybe the improbable will occur in court and the Beasties will win. But thanks to the media blizzard around this silly fight, GoldieBlox simply can’t lose.