This article originally appeared in the 11.27.13 issue of Metroland
Sorry I missed the last two columns.
There have been gnarly litigation deadlines
and some armed insurrections up the mountain.
I’m now in a strange sort of exile, operating out of a safe house with
double-encrypted dark-fiber VPN, a continuously scrambled satellite phone, 3
kinds of bourbon, Humble Pie’s Rockin’
The Fillmore-Complete Recordings
, an assortment of ironic facial hair appliques,
my dog Kimchi, some designer urban camo attire, and enough organic grass-fed
torrone nougat to see me through ‘til Spring.
It could be worse.
The Beastie Boys thing.
Last week a cool little girls’ toy company,
Goldieblox (“building games for girls to inspire future engineers”), stuck a
two-minute video on YouTube entitled Goldieblox,
Rube Goldberg & Beastie Boys “Princess Machine” (a concert for little
The video features a bunch
of little girls rocking a huge Rube Goldberg-style contraption set up all
around a suburban house, with the girls rapping a version of the Beasties’ song
“Girls”, from their 1987 debut
Licensed To Ill.
clip will have over 9 million views by the time you read this.
song is a silly little unlistenable trifle, a disposable cop of the Isley
Brothers’ “Shout”, and it features the oh-so-tasty lyrics:
Girls - to clean up my room
Girls - to do the laundry
Girls - and in the bathroom
Girls - that's all I really want
Two at a time - I want girls
With new wave hairdos - I want
I ought to whip out my - girls,
girls, girls, girls, girls!
The Goldiblox folks replaced this
sublime poetry with lyrics like:
Girls that 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.
Pretty freakin’ great, no? If I had pre-teen daughters I be on this like
stink on poop.
But the Beasties (or their record
company, or publisher, or someone) didn’t think so, and apparently contacted
Goldiblox last week and complained enough that Goldiblox ran to Federal Court
seeking a declaration that it wasn’t infringing the Beasties’ precious
copyright in the musical composition “Girls”.
And oh boy, does everybody have an
opinion on this. The Beasties are
hypocrites! The Goldiblox people are
criminals! It can’t be fair use ‘cause
it’s in a commercial! The Goldiblox people
are heroes! The Beasties are reformed
and are now all Buddhist and feminist and shit!
Dead Beastie Adam Rauch specified that no Beasties tracks would ever be
used in advertising and that’s that! The
Beasties are in a pickle, dancing around the issue, and issuing carefully
worded press releases. Interestingly,
amid all the posturing by both sides, the Beasties don’t appear to have issued
a take-down demand to YouTube for the clip.
It’s still there.
Cripes, people, don’t git yer undies
in a bundle. It’s not copyright
infringement. It’s fair use. It’s a parody, look at the lyrics! It comments on Girls’ abject misogyny, and it doesn’t matter if the Beasties were
just kidding. (As one of the Beasties
said about the song in a 1994 interview: “
It’s really scary when you do
something as a goof that then 4 million people take for real.”)
Goldiblox turned the tables, but good.
And as the Supreme Court held in the landmark
decision involving a god-awful 2 Live Crew version of Roy Orbison’s “Oh Pretty
Woman”, parodies are a pure form of fair use.
But it’s used
in a commercial! So what?
Fair use don’t
The intended use of the Goldiblox
version is but one factor out of many that courts consider in making fair use
determinations, and here the rest of the factors bury the commercial use no
matter how you cut it.
And a stipulation
in one person’s will, as admirable as it might be, doesn’t trump federal
Goldiblox has a get out of jail free card, right?
Look at the title of the video, the title put up by Goldiblox.
It includes the name “Beastie Boys”.
If you weren’t aware of this sad little
controversy, wouldn’t you think the Beasties had something to do with the clip,
that they at least endorsed
I sure would.
Assuming New York State law applies here
(because the Beasties are (I think) based in NYC), the use of their name in the
title of the clip likely violates NY Civil Rights Law § 50, which forbids the
unauthorized use of one’s name or likeness in advertising.
This isn’t a copyright issue; it’s a privacy
I can’t believe the Goldiblox people, so savvy
and creative in making the video, were so sloppy in naming it.
This could get very expensive.
Somebody at Goldiblox definitely has got
some ‘splainin’ to do.
Paul C. Rapp is a local
entertainment lawyer who represents fine artists and not-so-fine artists, and
who doesn’t enjoy long walks on the beach.