Team Beastie Boys.

[lulu13]

Team BB. The company should respect BB's wishes on this. I am sure they would not like the same type of treatment in return. And really even if you CAN do something doesn't mean you SHOULD.

[MrsAxilla]

Nov 25, 2013 19:01:18 GMT -5 11d said:

Nov 25, 2013 18:50:11 GMT -5 lulu13 said:

Team BB. The company should respect BB's wishes on this. I am sure they would not like the same type of treatment in return. And really even if you CAN do something doesn't mean you SHOULD.

Just like BB had the option NOT to sue. Just because they can (and might have a claim), doesn't mean they should.

And reminder I'm team both. I love my BB.

If you fail to enforce your IP rights, you can lose them altogether.

[angelaa73]

I will never understand the concept of steal first, sue next.

A huge WTF to goldiblox and Robin thicke. Fucking thieves.

[lulu13]

Nov 25, 2013 19:01:18 GMT -5 11d said:

Nov 25, 2013 18:50:11 GMT -5 lulu13 said:

Team BB. The company should respect BB's wishes on this. I am sure they would not like the same type of treatment in return. And really even if you CAN do something doesn't mean you SHOULD.

Just like BB had the option NOT to sue. Just because they can (and might have a claim), doesn't mean they should.

And reminder I'm team both. I love my BB.

The song means a lot more to BB than to this company. The least they could have done was ask permission. Just out of respect to the BB. They've done a good job with their marketing that is for sure. Too bad they had to take what wasn't theirs to be heard.

[lulu13]

Nov 25, 2013 19:08:23 GMT -5 11d said:

Nov 25, 2013 19:05:18 GMT -5 MrsAxilla said:

If you fail to enforce your IP rights, you can lose them altogether.

I get that (although I didn't know that) BUT I think this was an opportunity for the BB to say hey, you shouldn't have done it but the product is awesome and we'd love to back it. That kind of thing. Yes, I realize I live in optimistic land where rainbows and unicorns defeat companies and their need to have control and the almighty dollar.

Maybe they don't want to back this particular product.

[runforrest]

I love the BB, and think this will eventually settle out of court, but I think there are arguments for fair use here. All four factors are given equal weight and it would really be interesting to see how a court decides.

[berbles]

Nov 25, 2013 19:08:23 GMT -5 11d said:

Nov 25, 2013 19:05:18 GMT -5 MrsAxilla said:

If you fail to enforce your IP rights, you can lose them altogether.

I get that (although I didn't know that) BUT I think this was an opportunity for the BB to say hey, you shouldn't have done it but the product is awesome and we'd love to back it. That kind of thing. Yes, I realize I live in optimistic land where rainbows and unicorns defeat companies and their need to have control and the almighty dollar.

Except BB has ALWAYS had an explicit policy against licensing their music.  AND Adam Yauch, who is dead, expressly said as much in his will.  Even if the band wanted to allow GB to KOKO because they're doing good things, Adam's wishes will be respected first.

[lulu13]

Nov 25, 2013 19:12:16 GMT -5 11d said:

Nov 25, 2013 19:10:32 GMT -5 lulu13 said:

Maybe they don't want to back this particular product.

That could be. I'm just saying it's a miss for them. From the perspective of one of their demographic.

Honestly though I looked at the product on their webpage and I am not overly impressed and I don't think BB should blindly just endorse it just because it's a product made for girls. Plus I'm the mom of a young girl (the demographic) and I specifically would not support a product that was shady about this type of stuff.

edited to say that I think it's firmly anti-girl/woman to be expect a band who has held strong with their policy to change it just because this is a "girl empowerment" type of product. As women we don't need special rules to succeed.

[LeggsBenedict]

Nov 25, 2013 19:08:23 GMT -5 11d said:

Nov 25, 2013 19:05:18 GMT -5 MrsAxilla said:

If you fail to enforce your IP rights, you can lose them altogether.

I get that (although I didn't know that) BUT I think this was an opportunity for the BB to say hey, you shouldn't have done it but the product is awesome and we'd love to back it. That kind of thing. Yes, I realize I live in optimistic land where rainbows and unicorns defeat companies and their need to have control and the almighty dollar.

lol.

[berbles]

Nov 25, 2013 19:22:21 GMT -5 11d said:

Nov 25, 2013 19:18:13 GMT -5 lulu13 said:

Honestly though I looked at the product on their webpage and I am not overly impressed and I don't think BB should blindly just endorse it just because it's a product made for girls. Plus I'm the mom of a young girl (the demographic) and I specifically would not support a product that was shady about this type of stuff.

edited to say that I think it's firmly anti-girl/woman to be expect a band who has held strong with their policy to change it just because this is a "girl empowerment" type of product. As women we don't need special rules to succeed.

Shady is a strong word, I would say naive.

I LIKE BOTH, why can't they just get along?

It would take .02 seconds of due diligence (read: Googling) for GB to have figured out how this would go for them.  The burden is on them.  It's not naive, it's willful ignorance.

[lulu13]

Nov 25, 2013 19:22:21 GMT -5 11d said:

Nov 25, 2013 19:18:13 GMT -5 lulu13 said:

Honestly though I looked at the product on their webpage and I am not overly impressed and I don't think BB should blindly just endorse it just because it's a product made for girls. Plus I'm the mom of a young girl (the demographic) and I specifically would not support a product that was shady about this type of stuff.

edited to say that I think it's firmly anti-girl/woman to be expect a band who has held strong with their policy to change it just because this is a "girl empowerment" type of product. As women we don't need special rules to succeed.

Shady is a strong word, I would say naive.

I LIKE BOTH, why can't they just get along?

I think you are being a little naïve. This is a company and they knew what they were doing.

[speckledfrog]

Nov 25, 2013 19:22:21 GMT -5 11d said:

Nov 25, 2013 19:18:13 GMT -5 lulu13 said:

Honestly though I looked at the product on their webpage and I am not overly impressed and I don't think BB should blindly just endorse it just because it's a product made for girls. Plus I'm the mom of a young girl (the demographic) and I specifically would not support a product that was shady about this type of stuff.

edited to say that I think it's firmly anti-girl/woman to be expect a band who has held strong with their policy to change it just because this is a "girl empowerment" type of product. As women we don't need special rules to succeed.

Shady is a strong word, I would say naive.

I LIKE BOTH, why can't they just get along?

Because one of them took the other one's toy without asking permission.

[berbles]

So I asked my mom for her opinion - she's an IP attorney, though she primarily deals with patents, not copyrights.  Here's what she said:

This is BS. The lyrics may be transformed, but the MUSIC is essentially the same and recognizable, right?



Filing a declaratory judgment action was a legal maneuver meant to get GoldieBlox in their own courts, and to prevent an injunction from keeping the ad off the air during the Xmas buying season.



It is, in my opinion, a copyright violation.



Political criticism my ass. It is a COMMERCIAL.

[EmilieMadison]

Team BB.
You gotta fight! For your right! To not have someone steal your intellectual property!

[snipsnsnails]

Seems to me that it's a pretty direct parody of the original work. Now, if I only I got paid $200,000+ a year to dish this opinion out, and, you know, my last name was Sotomayor.

[berbles]

Nov 25, 2013 19:45:15 GMT -5 snipsnsnails said:

Seems to me that it's a pretty direct parody of the original work. Now, if I only I got paid $200,000+ a year to dish this opinion out, and, you know, my last name was Sotomayor.

Parody means they are attempting to make social/political commentary.  They are not.  They are using someone else's IP, with minor changes, TO MAKE MONEY.

That's the difference.

[snipsnsnails]

Nov 25, 2013 19:47:13 GMT -5 berbles said:

Nov 25, 2013 19:45:15 GMT -5 snipsnsnails said:

Seems to me that it's a pretty direct parody of the original work. Now, if I only I got paid $200,000+ a year to dish this opinion out, and, you know, my last name was Sotomayor.

Parody means they are attempting to make social/political commentary.  They are not.  They are using someone else's IP, with minor changes, TO MAKE MONEY.

That's the difference.

Nah, seems to me like they're using it specifically to comment on the social construct surrounding girls as people to engineer, and not, uhhh, just do the dishes.

But, we'll see how it plays out in front of a judge. Determining copyright fair use, to me, sometimes is about as determinate as shaking a Magic 8 Ball, but I didn't type that out loud.

[EmilieMadison]

Nov 25, 2013 17:01:25 GMT -5 kooshball said:

I like this one:
www.eff.org/deeplinks/2013/11/beastie-boys-goldieblox-fair-use-lawsuit

Girls Against Boys: What's Wrong With the (Latest) Beastie Boys Lawsuit

“Oh no!” said the email that went round the EFF office on Friday. Could it be true that the Beastie Boys had unleashed the legal hounds to shut down a parody ad that uses the group's classic misogynistic ditty, “Girls”? Surely not. As remix pioneers, the Beastie Boys are the veterans of many legal battles against copyright maximalists. The Beastie Boys aren’t copyright bullies, they fight those bullies. Right?

Wrong, at least this time. The Beastie Boys and Universal Music have indeed accused the video's creator, toy company GoldieBlox, of copyright infringement. Happily, GoldieBlox not only refused to be intimidated, it decided to go on the offensive, filing a complaint asking a federal court to declare that the ad was a lawful fair use.

It's unclear how strong the legal threats were—they aren’t attached to the complaint—but GoldieBlox is clearly worried not just about an infringement lawsuit, but any effort to abuse the DMCA to take down the video just as the holiday shopping season gets under way.

The Beastie Boys famously object to the use of their music in any advertising. Adam Yauch explicitly mentioned it in his will. Nonetheless, GoldieBlox should win on the merits. Here’s why.

The fair use analysis turns on four factors, considered together in light of the purposes of copyright. The first factor, the purpose of the use, considers whether the use transforms the original work to create something new and different and also, to a lesser extent, whether it is commercial. In this case, the use is clearly transformative. GoldieBlox describes itself as a company “on a mission to inspire the next generation of female engineers.” To promote its toys and its mission, it took a song that has been widely criticized for its characterization of women and rewrote the lyrics to tell a different story. Instead of “Girls, to do the dishes; Girls, to clean up my room” (the original lyrics), we hear “Girls, to build a spaceship; Girls, to code the new app” etc. There's an obvious commercial element – it’s an advertisement - but that doesn’t end the analysis, especially when the use is highly transformative. This factor favors GoldieBlox.

The second factor considers the nature of the original work: whether it is more or less creative, and whether it is published or unpublished. Copyright tends to give greater protection to creative works like “Girls,” but that need for protection may be mitigated where, as here, a song is long since published and the creator has had ample chance for compensation. This one is a draw, or at most slightly favors the Beastie Boys.

The third factor considers whether GoldieBlox used more of the original work than needed for the purpose. This factor also favors GoldieBlox. The ad uses the instantly recognizable basic tune, but strips out the drum beat and original vocals. While it runs two minutes (most of the length of the original published recording), that’s no more or less than necessary to let the Rube Goldberg machine depicted in the ad run its course. GoldieBlox could have made a less intricate machine, of course, but that would have undermined the purpose of showing the amazing creative engineering girls can do.

, it’s hard to imagine what market is harmed. Sure, the Beastie Boys may have a potential market for licensing songs for commercials (albeit one they chose not to pursue), but this is different—the purpose is an explicit parody. As the Supreme Court has recognized, critical transformative uses rarely if ever supplant markets for the original material.

Taken together, the factors favor fair use. Moreover, the video furthers the purposes of copyright. It serves the public interest by advancing political criticism and debate regarding sexist stereotypes about girls and engineering. What is more, it’s a classic example of growing the cultural commons by remaking existing cultural works to create new insights and expression. That kind of creativity what fair use is for. And it’s part of what made the Beastie Boys great.

On the merits, then, the fair use analysis is solid. But expect to hear this counterargument: that one of the most basic “copyrights” is the right to control how your work is used—including whether it is used at all. Proponents of this kind of claim will often invoke J.D. Salinger’s steadfast opposition to any adaptions of his works. But the argument forgets that every copyright set out in the Copyright Act is subject to numerous exceptions – including fair use. Copyright ≠ total control.

Sorry, Beastie Boys, you got this one wrong. We hope you and Universal Music do the right thing—or that a court does it for you.

And what now? 
The first factor, the purpose of the use, considers whether the use transforms the original work to create something new and different and also, to a lesser extent, whether it is commercial. They changed a few of the lyrics but IT IS FOR A COMMERCIAL.

The second factor considers the nature of the original work: whether it is more or less creative, and whether it is published or unpublished. Are they really arguing that this song was not a work of creativity and was not published?

The third factor considers whether GoldieBlox used more of the original work than needed for the purpose. They didnt "need" to use ANY of the song to prove their point, to share their message, or to serve their purpose. They came up with a great product that promotes creativity- why couldn't they find someone within their team to create their own song?


The fourth factor, market harm.  The purpose is not explicit parody, as stated above, it's to gain profit. BB is choosing NOT to license their songs for marketing. So.

[Deleted]

Nov 25, 2013 19:35:02 GMT -5 berbles said:

So I asked my mom for her opinion - she's an IP attorney, though she primarily deals with patents, not copyrights.  Here's what she said:

This is BS. The lyrics may be transformed, but the MUSIC is essentially the same and recognizable, right?



Filing a declaratory judgment action was a legal maneuver meant to get GoldieBlox in their own courts, and to prevent an injunction from keeping the ad off the air during the Xmas buying season.



It is, in my opinion, a copyright violation.



Political criticism my ass. It is a COMMERCIAL.

I love when my instincts are validated by professionals with expertise.


Also, you fight exploitation of your ip every time so that every Tom Dick and Harry don't rip you off 24/7. Fight bb, fight.

[berbles]

Nov 25, 2013 19:51:36 GMT -5 snipsnsnails said:

Nov 25, 2013 19:47:13 GMT -5 berbles said:

Parody means they are attempting to make social/political commentary.  They are not.  They are using someone else's IP, with minor changes, TO MAKE MONEY.

That's the difference.

Nah, seems to me like they're using it specifically to comment on the social construct surrounding girls as people to engineer, and not, uhhh, just do the dishes.

But, we'll see how it plays out in front of a judge. Determining copyright fair use, to me, sometimes is about as determinate as shaking a Magic 8 Ball, but I didn't type that out loud.

That's why they picked the song, but that's not the intent of the commercial.  The intent of the commercial is to sell their product.  They could have come up with an equally effective ad without the song. 

[hisno1girl]

Nov 25, 2013 19:51:36 GMT -5 snipsnsnails said:

Nov 25, 2013 19:47:13 GMT -5 berbles said:

Parody means they are attempting to make social/political commentary.  They are not.  They are using someone else's IP, with minor changes, TO MAKE MONEY.

That's the difference.

Nah, seems to me like they're using it specifically to comment on the social construct surrounding girls as people to engineer, and not, uhhh, just do the dishes.

But, we'll see how it plays out in front of a judge. Determining copyright fair use, to me, sometimes is about as determinate as shaking a Magic 8 Ball, but I didn't type that out loud.

I would almost agree with this BUT during the commercial, and at the end, they advertised their product.

If they wanted to just make social commentary, they could have done it without pitching their own product.

[EmilieMadison]

Nov 25, 2013 19:51:36 GMT -5 snipsnsnails said:

Nov 25, 2013 19:47:13 GMT -5 berbles said:

Parody means they are attempting to make social/political commentary.  They are not.  They are using someone else's IP, with minor changes, TO MAKE MONEY.

That's the difference.

Nah, seems to me like they're using it specifically to comment on the social construct surrounding girls as people to engineer, and not, uhhh, just do the dishes.

But, we'll see how it plays out in front of a judge. Determining copyright fair use, to me, sometimes is about as determinate as shaking a Magic 8 Ball, but I didn't type that out loud.

The song is IN A COMMERCIAL. The commercial is marketing a product. The product is being sold to make a profit for the company.

The company may hope to make a social commentary on gender disparity, but it's not being said without dollar signs in their eyes. 

[berbles]

Nov 25, 2013 19:54:52 GMT -5 hisno1girl said:

Nov 25, 2013 19:51:36 GMT -5 snipsnsnails said:

Nah, seems to me like they're using it specifically to comment on the social construct surrounding girls as people to engineer, and not, uhhh, just do the dishes.

But, we'll see how it plays out in front of a judge. Determining copyright fair use, to me, sometimes is about as determinate as shaking a Magic 8 Ball, but I didn't type that out loud.

I would almost agree with this BUT during the commercial, and at the end, they advertised their product.

If they wanted to just make social commentary, they could have done it without pitching their own product.

Nov 25, 2013 19:55:13 GMT -5 EmilieMadison said:

Nov 25, 2013 19:51:36 GMT -5 snipsnsnails said:

Nah, seems to me like they're using it specifically to comment on the social construct surrounding girls as people to engineer, and not, uhhh, just do the dishes.

But, we'll see how it plays out in front of a judge. Determining copyright fair use, to me, sometimes is about as determinate as shaking a Magic 8 Ball, but I didn't type that out loud.

The song is IN A COMMERCIAL. The commercial is marketing a product. The product is being sold to make a profit for the company.

The company may hope to make a social commentary on gender disparity, but it's not being said without dollar signs in their eyes. 

JINX!  LOL

[snipsnsnails]

Heh, to be fair, most parody is going to fall under commercial nature in the first clause of determing FU, but that doesn't make it a slam dunk. A judge may very well look at it and determine that their aim was to make social commentary first and foremost with a notable song that they take and not only change, but criticize its core message.

[snipsnsnails]

Dang, I really thought more people would see this as a possible fair use. I've got love for the BB and all, but fair use protection is a legit way to continue to see creative works be used in expansive ways.

A judge might side with BB, but it doesn't seem all that hard and fast to me.

[EmilieMadison]

Nov 25, 2013 19:59:45 GMT -5 snipsnsnails said:

Heh, to be fair, most parody is going to fall under commercial nature in the first clause of determing FU, but that doesn't make it a slam dunk. A judge may very well look at it and determine that their aim was to make social commentary first and foremost with a notable song that they take and not only change, but criticize its core message.

If most parodies are done with the express intent of marketing a product for profit, then I guess you're right. 
Their aim is to SELL A PRODUCT. The fact that they are pushing for social change in gender stereotypes is not their primary goal. If it was, they'd be giving their product away for free to anyone who wanted it. 
How is this not clear? 

[berbles]

snipsnsnails, I could allllmost see a judge siding with GB, IF BB had ever licensed their music.  But the fact that they are vocal about NOT commercially licensing their music makes their case stronger, IMO.  

GB is not making social commentary about gender inequality.  And even if they were, again, the use of this particular song is not a necessary part of the equation.  They can advertise their product AND/OR make social commentary about gender disparity without using the song.

I think a true "fair use" case would have to prove that the message wouldn't make sense without the copyrighted music.  KWIM?

[snipsnsnails]

Nov 25, 2013 20:05:25 GMT -5 EmilieMadison said:

Nov 25, 2013 19:59:45 GMT -5 snipsnsnails said:

Heh, to be fair, most parody is going to fall under commercial nature in the first clause of determing FU, but that doesn't make it a slam dunk. A judge may very well look at it and determine that their aim was to make social commentary first and foremost with a notable song that they take and not only change, but criticize its core message.

If most parodies are done with the express intent of marketing a product for profit, then I guess you're right. 
Their aim is to SELL A PRODUCT. The fact that they are pushing for social change in gender stereotypes is not their primary goal. If it was, they'd be giving their product away for free to anyone who wanted it. 
How is this not clear? 

I'm saying most parodies are done with an intent to garner profit, but there can be accompanying intents obviously. SNL takes Top 40 songs and humorously changes the lyrics to get laughs, but also to drive up viewership which translates to $$$. Recording artists parody mainstream songs to sell records, but also, sometimes to create a direct opposition to the original works' intent in the social conscious. GB is using this song to sell toys. First, they need to bring about the collective idea that girls are seen as pretty little things that do dishes, clean up boys' rooms and do laundry among other things. Once they establish that through the fair use of the original work (which is already established, allowing it to be possible to parody), then they have the springboard to sell toys that shake that idea up.

[kadams767]

Nov 25, 2013 19:13:13 GMT -5 11d said:

Nov 25, 2013 19:06:22 GMT -5 lulu13 said:

The song means a lot more to BB than to this company. The least they could have done was ask permission. Just out of respect to the BB. They've done a good job with their marketing that is for sure. Too bad they had to take what wasn't theirs to be heard.

I assume they didn't feel they needed to, hence the counter suit. But I hear what you are saying too.

Lol, you are all over the place. There is no counter suit. One suit, for judgment, filed by Goldiblox.

And on your other post, no, it's not that "maybe" the BB don't want to back this product via use of their music. Its definitely no, they don't. They don't permit use of their music for endorsements/commercials, period.

[snipsnsnails]

Nov 25, 2013 20:08:46 GMT -5 berbles said:

snipsnsnails, I could allllmost see a judge siding with GB, IF BB had ever licensed their music.  But the fact that they are vocal about NOT commercially licensing their music makes their case stronger, IMO. 

Oh see, I think this is going to work against them. I mean, it shouldn't justice being blind and all that. yadda, yadda, yadda, but I feel like a judge is going to look at the tighthold they have on their IP and see it in opposition to the idea that creative works are living, breathing entities meant to be collectively expanded upon through all sorts of fair use.

This is an ongoing debate between my DH and I. We're both creative types and he holds to the idea that an artist is allowed to control his ideas/works forever and ever, amen. I am more of the mindset that there is a deliberate release of a certain amount of control (copyright does not necessarily equal control) when you put your art into the public to be consumed. There is always the possibility that there will be a fair use of your property that you have to allow (or the courts will do it for you .