YouTube video

We reported yesterday on a lawsuit filed by toy company GoldieBlox seeking declaratory relief against a potential copyright infringement complaint by the Beastie Boys.

The case concerned a GoldieBlox ad rewriting the lyrics of the Beasties’ song ‘Girls’ to be more empowering for girls getting interested in science, engineering and coding. Since the news broke, though, there’s been some very interesting commentary on who holds the moral high ground, and more importantly, who’s on firmer legal ground in the case.

The Beastie Boys published an open letter yesterday. “We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering,” explained the band.

“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 will of founder member Adam Yauch is thought to preclude any use of the Beastie Boys’ music in ads, making the moral question even fuzzier.

Yet as Techdirt bluntly points out: “As principled as Yauch was about this, and as admirable as it may be for him and the band to not want their music appearing in advertisements that does not matter under the law. If the use is considered fair use, then it can be used. Period. There is no clause in fair use law that says ‘except if someone’s will says otherwise.’ The very point of fair use is that you don’t need permission and you don’t need a license.”

Add to this the verdict of Julie Ahrens, director of copyright and fair use at Stanford University’s Center for Internet and Society, who tells On The Media that the fact that GoldieBlox’s video is an advertisement is just “a subfactor within the fair use analysis” and suggests that “It’s way too narrow to say this this video is just to sell toys. The purpose of the use is also to get this bigger message out. So you can see how those arguments stack up in favour of the use”.

It’s an intriguing copyright case, but one that looks like it won’t end well for the Beastie Boys – both legally, and in terms of public opinion – even though their unhappiness at the use of one of their songs in an ad is understandable.

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