Parodies Aren’t Endorsements

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Over the past week, much has been written about GoldieBlox's parody of the Beastie Boys song "Girls." For those who haven't heard, GoldieBlox, maker of toy building sets targeted at girls, made a video promoting their product, which went viral (as of this blog post, it has over 8 million views on YouTube). Beastie Boys found out, they cried copyright infringement, and GoldieBlox went to court to ask the court to declare that this use of "Girls" is fair use, and therefore not copyright infringement.

Shenanigans ensued! The Internet has been all atwitter with discussion of this dispute. Over at the Electronic Frontier Foundation, you can find a good summary of the argument that GoldieBlox's parody is in fact fair use. Andy Baio also has an excellent mythbusting post on this dispute. We at PK agree that if it comes to that, GoldieBlox's use of "Girls" should be found to be a fair use by the court, but that's not what this post is about. This post is about something that came up in an open letter the Beastie Boys shared with the New York Times yesterday responding to GoldieBlox's court filing, which says in part:

As creative as it is, make no mistake, your 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.

When we tried to simply ask how and why our song "Girls" had been used in your ad without our permission, YOU sued US.

The letter centers on the premise that No One Can Use Anything Beastie Boys Without Our Permission. But that's not true. Copyright only protects some uses of a copyrighted work. As John blogged about last week, there are lots of uses of a work that aren't protected. In this case, because GoldieBlox's parody of "Girls" directly critiques the message of the original, GoldieBlox's use, even though it's in a commercial, is almost certainly a fair use.

And the Beastie Boys of all people should know this. They have been involved in more than their fair share of copyright disputes, and know full well that not all "uses" of protected works require permission. 

Let's take a look at what probably drove the Beastie Boys' action here. It can't be that they think GoldieBlox's parody is in some way detracting from their ability to monetize the song. The parody isn't competing with the song in the marketplace, and the unlicensed use of the song didn't displace revenue because the Beastie Boys would never have sold a license to use the song in an advertisement anyway. It's probably this: the Beastie Boys don't want to be viewed as having "sold out," and they don't want anyone to think they have endorsed a commercial product. Sure, that's understandable. But, well, why do they think that *any* use of their work in an advertisement will cast them in a light of having endorsed the product? Where, like here, the work has been parodied, there really isn't any chance that anyone will hear it and think, "Wow, I can't believe the Beastie Boys endorsed that product."

So come on, rightsholders. There are lots of things you can control when it comes to your protected work. Some uses though, are out of your control. You can't be forced to endorse something that you don't want to endorse. But no one is going to mistake a parody for an endorsement.

Original image by flickr user ricarose.

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