Way back in 1987, Michael “Mike D” Diamond, Adam “MCA” Yauch, and Adam “Ad-Rock” Horovitz, AKA the Beastie Boys, released their debut album, Licensed to Ill. “(You Gotta) Fight for Your Right (to Party!)” was the album’s biggest hit. But it’s another song from Licensed to Ill, a simple ditty that clocks in at a mere 2:14, that’s on everyone’s lips today: “Girls.”
Set to a basic drumbeat and vibraphone loop, the Beasties rap in “Girls” about their love of ... girls. Sort of. As with many Beasties songs, the lyrics contain a lot of maybe serious/maybe satirical misogyny:
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
Two at a time I want girls
With New Wave hairdos I want girls
I ought to whip out my girls, girls, girls, girls, girls!
When the educational toy company GoldieBlox launched a new ad campaign last month, “Girls” became the soundtrack. But GoldieBlox added a twist. Deborah Sterling, a Stanford-educated engineer and the CEO of GoldieBlox, wants to coax young girls away from the toy store’s “pink aisle.” In particular, she wants girls to think less about becoming princesses and more about becoming engineers, architects, and scientists. So, rewriting and parodying “Girls,” GoldieBlox produced a fantastic commercial that went viral. Three impossibly cute and racially diverse girls sit bored in front of a TV watching princessed-out versions of themselves. And then they decide to take matters in hand. Using the pink, girly toys that they’ve apparently been hating, the girls assemble a fantastic Rube Goldberg machine that snakes throughout their house, yard, and sidewalk. (Take a look at the video.)
One of the best things about the GoldieBlox video is how it subverts the Beasties’ song to trash the very same gender stereotypes the Beasties celebrated. Here is GoldieBlox’s revision of the Beasties’ lyrics:
Girls, you think you know what we want
Girls, pink and pretty it’s girls
Just like the ‘50s it’s girls
You like to buy us pink toys
And everything else is for boys
And you can always get us dolls
And we’ll grow up like them, false
It’s time to change
We deserve to see a range
Cause all our toys look just the same
And we would like to use our brains
And we are all more than princess maids
Girls, to build a spaceship
Girls, to code a new app
To grow up knowing
That they can engineer that
Girls, that’s all we really need is girls
To bring us up to speed, it’s girls
Our opportunity is girls
Don’t underestimate girls
Clever and cute. And you might think that the Beastie Boys, who—by the way—made a career out of repurposing others’ music for their own songs through sampling, would roll with the punches. But that’s not what happened. Because the Beastie Boys never wanted their music to be used in commercials. In fact, Beastie Adam Yauch explicitly wrote that wish into his will. Shortly after Yauch passed away from cancer in 2012, Rolling Stone obtained a copy of the will, which included this provision:
“Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”
The phrase “or any music or any artistic property created by me” was added by Yauch himself, by hand.
When the surviving Beastie Boys learned of the video they threatened to sue. Which, given GoldieBlox’s obvious expertise at the art of getting public attention, was a mistake. GoldieBlox pre-emptively filed a complaint in federal court in California, asking for a judgment declaring that GoldieBlox’s parody version of “Girls” was a perfectly legal example of what copyright lawyers call “fair use.” Fair use is a legal rule that lets us copy others’ work to the extent necessary to comment on it, criticize it, or—crucially—transform it into something new. Though the boundaries of fair use are fuzzy and constantly evolving, it is a central part of American copyright law. It is the principal way in which copyright, which by definition restricts speech, can co-exist with the First Amendment, which abhors restraints on speech.
GoldieBlox made sure that the press got a hold of its court filings. What followed was an avalanche of press coverage and millions more YouTube views of the GoldieBlox video. All timed perfectly for Black Friday and the start of the Christmas shopping season.
So, from GoldieBlox’s perspective, mission accomplished. On Nov. 27, the company posted a sort of love letter to the Beasties, in which they claimed to have reluctantly filed suit only after threats from the band’s lawyers. GoldieBlox also promised to remove the song from the video and dismiss the lawsuit now that they’d learned of MCA’s dying wish not to have his songs used in ads.
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.