[UPDATE Nov. 27, 2013: Hours after this story was originally published, Goldieblox released a new version of the ad minus the "Girls" music. The statement has been added below.]
Q: Who's right in the dogfight between the Beastie Boys and toy company Goldiblox? Were the Beastie Boys ripped off when GoldieBlox 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 GoldieBlox 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 "Girls," went big-time viral (8.7 million YouTube views and counting since being posted on Nov. 17). On Thursday, GoldieBlox filed a preemptive lawsuit against Team Beastie seeking a court declaration that the video be deemed perfectly legal. The company insisted it went to court after receiving threats from Beastie lawyers.
Meanwhile, Beastie Boys Adam Horovitz and Michael Diamond, 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 GoldieBlox video, but didn't want their song used as a commercial.
"We were very impressed by the creativity and the message behind your ad," they wrote in an open letter. "We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering."
It was also revealed that late Beastie Adam Yauch, who died of cancer complications in 2012, had stated in his will that he didn't want the trio's music used for commericals.
According to Corynne McSherry, intellectual property director for the Electronic Frontier Foundation, there are 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 GoldieBlox did; and whether GoldieBlox 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 people will have sympathy for them, thinking that the Boys were ripped off. I would also think the music industry would stick up for them," publicist Cherie Kerr (who does not work with the Beasties) tells me.
"If the remaining band members are smart, though, they'll capitalize on the situation and let the story help them sell more records! who knows: It could create a comeback!"
But there might not be a courtroom confrontation now. On Wednesday, GoldieBlox appeared to offer an olive branch, saying in a message to the band it never wanted its feel-good campaign to result in such bad vibes.
We don't want to fight with you. We love you and we are actually huge fans.
When we made our parody version of your song "Girls," we did it with the best of intentions. We wanted to take a song we weren't too proud of, and transform it into a powerful anthem for girls. Over the past week, parents have sent us pictures and videos of their kids singing the new lyrics with pride, building their own Rube Goldberg machines in their living rooms and declaring an interest in engineering. It's been incredible to watch.
Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves. We did so sincerely hoping we could come to a peaceful settlement with you.
We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising. Although we believe our parody video falls under fair use, we would like to respect his wishes and yours.
Since actions speak louder than words, we have already removed the song from our video. [The original version is no longer playable on YouTube; the altered version is embedded above.] In addition, we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team.
We don't want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.
So this whole battle could be moot, if the Beasties agree to play nice.
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Leslie Gornstein is an entertainment writer and the host of the weekly Hollywood gossip podcast The Fame Fatale.
(Originally published Nov. 26, 2013, at 2:12 p.m. PT)