Q: Who's right in the dogfight between the Beastie Boys and toy company Goldiblox? Were the Beastie Boys ripped off when Goldiblox released its viral video, or was the toy company right to preemptively sue the rap group and claim that the whole thing is protected parody speech?
A: The two surviving Beastie Boys may want their dippy ode to misogyny to remain in the sphere of protected copyright, but if this scrum ever goes to court, the rappers are likely to get knocked down faster than that Rube Goldberg contraption we saw in the Goldiblox video.
Yes, the video is clearly aimed at selling something. And yes, the Beasties have a long history of refusing to let their songs be used to sell anything. But just because you're selling something doesn't automatically make what Goldiblox did illegal, or even immoral.
Welcome to the field of fair use law, where what you say matters almost as much as how you say it.
First, let's recap our story so far. Last week, the aforementioned girl-power video, titled "Princess Machine" and featuring a bunch of youngsters who ditch their dollies and show off their engineering smarts to the strains of a retooled version of "Girls," went viral (8.7 million YouTube views and counting since being posted on Nov. 17). On Thursday, Goldiblox filed a preemptive lawsuit against Team Beastie seeking a court declaration that their video be deemed perfectly legal. Meanwhile, the Beasties, losing the PR war and being portrayed as bullies in the Twitterverse, issued a statement Monday explaining that they agreed with the sentiment of the Goldiblox video, but didn't want their song used as a commercial.
According to Corynne McSherry, intellectual property director for the Electronic Frontier Foundation, lists four factors that determine a ripoff versus a legally-protected parody. First: Does the video use the copyrighted work to create something that's mostly new? Lawyers use the word "transformative" to describe a piece of expression that's mostly new, and if you look at the video, you'll notice almost nothing Beastie-related.
"There's an obvious commercial element — it's an advertisement — but that doesn't end the analysis," McSherry writes, "especially when the use is highly transformative. This factor favors GoldieBlox."
Other elements to consider: whether the copyright holders have had "ample chance for compensation" for their work; whether the Beasties were harmed in any way by what Goldiblox did; and whether Goldiblox unnecessarily used too much of the original song in its parody.
"Taken together," McSherry insists, "the factors favor fair use," in other words, that the viral video is just fine in the eyes of the law.
The Beastie Boys may have more luck in the court of public opinion, PR experts tell me.
"I think many will have sympathy for them being ripped off, and also they can blow the hell out of this story to bring attention to them, to sell more records and fight for the music industry," publicist Cherie Kerr tells me. "The trades will probably get behind them."
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Leslie Gornstein is an entertainment writer and the host of the weekly Hollywood gossip podcast The Fame Fatale.