The legal battle over the Beastie Boys’ 1987 song “Girls” had some law students wondering if it might be a fact pattern on their copyright final exam. Now, the band and toy company GoldieBlox have reached a settlement over a months-long infringement suit.

GoldieBlox’s stated mission is “to get girls building.” They market their engineering and construction toys to young girls to incite early interest in fields traditionally underrepresented by women – science, technology, engineering, and math. As part of an advertising campaign, the company parodied the Beastie Boys’ song “Girls,” changing the original lyrics (“Girls – to do the dishes/Girls – to clean up my room”) to words celebrating girls’ intelligence (“Girls – to build a spaceship/Girls – to code the new app/Girls – to grow up knowing/That they can engineer that”).

Today the band members are outspoken feminists and have expressed regret for their early sexist lyrics.

The band has also specifically avoided using their songs in advertisements. Member Adam Yauch, a.k.a. MCA, died on May 4, 2012, after a long battle with cancer. True to his ideology, his will prohibited the use of Beastie Boys songs in commercials, ensuring corporations could not profit from his art even postmortem. Shortly after the contents of his will were revealed, the band sued Monster Energy Drink for copyright infringement when the company used the band’s music and likeness in promotional videos and a social media campaign.

The Boys’ next big infringement encounter began in the fall of 2013, when the band saw GoldieBlox’s commercial featuring “Girls” and inquired about its use. In response, GoldieBlox filed a preemptive defensive suit. The band’s legal team reacted by threatening a copyright infringement suit. In an open letter to GoldieBlox, the band members wrote, “[Y]our video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.”

GoldieBlox replied with an apologetic open letter that emphasized their intentions behind the parody – to transform the song into a “powerful anthem for girls.” They additionally removed the ad from their website. But the band nonetheless filed suit on December 10, 2013, in a California District Court.

GoldieBlox maintained that their version of “Girls” was protected under the fair use doctrine as a parody. They based their argument mainly on Campbell v. Acuff-Rose Music, Inc., a 1994 U.S. Supreme Court case upholding rap group 2 Live Crew’s commercial parody of Roy Orbison’s song “Oh, Pretty Woman” as fair use. In that case, 2 Live Crew heavily sampled and parodied the Orbison song and included it on a 1989 record. Although one purpose of their parody was to sell their own records, the commercial nature of their use was not dispositive; rather the Court emphasized that purpose and character of the use is one of only four factors that must be balanced on a case-by-case basis when determining fair use. Because 2 Live Crew’s version “reasonably could be perceived as commenting on the original or criticizing it,” it qualified as a transformative use.

Whether a court would have applied Campbell to the Beastie-GoldieBlox suit is questionable, though. Campbell does not always protect parody under fair use, but rather holds that commercial parody can be fair use given the right circumstances. Had the case progressed to trial and the court found that GoldieBlox’s parody was highly transformative, it likely would have placed less emphasis on the commercial nature of the parody and held for the toy company. On the other hand, 2 Live Crew’s parody of “Oh, Pretty Woman” was a transformative, artistic use included on a record, whereas GoldieBlox’s version of “Girls” was used solely as an advertising strategy.

GoldieBlox’s complaint underscored their goal of empowering young women. Courts, however, have never granted exceptions to infringement merely because the company was promoting a good cause. Although GoldieBlox endorses admirable societal goals, the advertisement’s bottom line was ultimately to sell a product.

One Boston attorney has even labeled GoldieBlox as a “reverse copyright troll” – because the Beastie Boys are known for not using their product in advertising, and GoldieBlox specifically did not get a license, he speculates that they may have baited the band into a lawsuit, possibly to drum up more exposure for their product.

As part of the settlement terms, the toy company will pay a percentage of its revenues to one or more charities selected by the band that promotes science, technology, engineering, and math education for girls. They have also publicly apologized on their website, promising to secure rights and permissions for any future promotions and advising other young companies to do the same.

Lorraine Baer

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