Interactive Counsel

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Interactive Counsel

Beastie Boys: (You Gotta) Fight for Your Right (To Fair Use!)

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Beastie Boys: (You Gotta) Fight for Your Right (To Fair Use!)

The Beastie Boys don’t play games when it comes to copyright infringement. The legendary hip hop band is waging an aggressive legal battle against a company called GoldieBlox that makes engineering toys for girls over what the band claims is copyright and trademark infringement related to its 1987 hit song “Girls.”

The dispute started in November when GoldieBlox released a new video advertisement on its website and YouTube. The video, which quickly went viral and garnered over eight million views in 10 days, features three girls and a Rube Goldberg machine, as well as a parody version of the “Girls” song with re-recorded and re-written lyrics about girls’ empowerment. The ad’s title – “GoldieBlox, Rube Goldberg, & Beastie Boys ‘Princess Machine’” – accounts for the trademark claim. After the Beastie Boys became aware of the video and contacted the company about taking the ad down, GoldieBlox struck back with a preemptive lawsuit, asking for a declaratory ruling that the ad was permissible “fair use” rather than copyright infringement, as the Beastie Boys claimed. A few days later, however, the company posted a message on its website, claiming that they were “huge fans,” didn’t want to fight, and offered to remove the song from the ad and drop the lawsuit.

The offer apparently didn’t go far enough for the Beastie Boys, who opted instead to file counterclaims against GoldieBlox for copyright and trademark infringement. The band is now seeking, among other things, actual damages and lost profits resulting from the infringement, as well as any financial gain that GoldieBlox obtained from the ad, including company profits.

Whether the ad would actually qualify as fair use of copyrighted content is a matter of some debate among those who are closely watching the case. Generally, courts determine whether a work is “fair use” by considering four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market. Satire and parody do, in general, qualify as fair use, and courts have upheld fair use in a commercial context before, but whether a court will agree that the ad is fair use in this specific commercial context is uncertain.

Given the Beastie Boys’ uncertain chances of success, some are questioning whether there are other motivations for the lawsuit. The band’s complaint alleges that GoldieBlox has been a habitual copyright infringer, publishing videos that allegedly infringe upon songs by Queen and Daft Punk, among others. Moreover, one of the group’s original members, Adam Yauch, who died in 2012, left instructions in his will that his music never be used for commercial purposes.

Whatever the Beastie Boys’ motivations, the case could help further define the blurry line between fair use and copyright infringement, and is a reminder to companies and marketers to address potential copyright issues before proceeding with an advertising campaign. Arent Fox will continue to monitor developments related to the case. Please contact Anthony Lupo, Sarah Bruno, or Dan Jasnow with any questions.

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