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Ask a Lawyer: Who Has the Better Case, the Beastie Boys or GoldieBlox?

The legal standoff between the Beastie Boys and the engineering-toys-for-girls company GoldieBlox looked like it had been diffused last month after GoldieBlox apologetically pulled its ad scored with an unauthorized parody of the Beasties’ 1987 anthem "Girls." However, apparently Girls and Boys are not done fighting: Beasties Adam Horovitz and Mike Diamond are going ahead with a lawsuit charging "systematic infringement of intellectual property." Meanwhile, even after taking down their online ad, GoldieBlox never dropped the preemptive defensive suit they filed when the Beastie Boys first inquired about the commercial. It’s emotionally difficult to pick sides on this: GoldieBlox’s toys had a positive message for girls, but the Beastie Boys have long had a policy about not letting their songs be used to sell products. But the legal system isn’t about emotion, so to help sort through the ethics and legalities, Vulture spoke with Boston attorney Steven M. Ayr, who blogs about fair use and artists' rights on his website.

So first of all, didn't GoldieBlox say they were dropping their complaint? Why is this still ongoing?
Going back over GoldieBlox's statement, what they said is essentially, "We'll let it drop if you will" – but they didn't say they were actually going to dismiss the complaint. And as it turns out, they never did. So the complaint stayed in play in court, moving along as it otherwise would. And now the case can't be dismissed by GoldieBlox, because the complaint has been answered.

Looking at the original complaint filed by GoldieBlox, they're arguing that their version of "Girls" is protected as a parody. There's a precedent for this: the 2Live Crew vs. Roy Orbison case of 1994.
That's obviously what they're hitching their wagon to, that this is a parody and, as such, it should be fair use. I think that the problem is that a lot of people read that 2Live Crew case and are like, oh, well parody is always going to be a fair use now. And I don't think that’s the case at all. What the court says in that case is that a parody can be a fair use, but just because it's a parody doesn't make it a fair use. People run into the same trap where they think something is a fair use because it's not a commercial use. And the case law doesn't say that just because it's non-commercial doesn't mean it's fair use. It says: It can be commercial and still be fair use, and it's usually going to help if it's non-commercial, but just because it's not commercial or just because it's a parody doesn't mean that it's necessarily fair use. And so I'm not really sure in this case that it's either non-commercial or a parody.

You don't think it's a parody?
I'm no Beastie Boys scholar – and you can quote me on that! – but my impression of the original song has always been that it's so over-the-top, that it seems to be a commentary unto itself on that macho party lifestyle of most hip-hop bands at the time. That was the takeaway that I took from that album. And so the complaint and all the publicity coming out from GoldieBlox about it seems to be, "this is an incredibly sexist song and so we are parodying it, because we are trying to advance the cause of women in the STEM fields." But I think that argument fails if the song, at the heart of it, isn't really as sexist as it would be if you took it literally. And the Beastie Boys specifically state in their response that this was a "sarcastic anthem," which would go to undermining the claim of parody.

Reading over the GoldieBlox complaint, I noticed that much of it is about how they're entitled to use this song because they're all about female empowerment. But that seems beside the point of fair use. Has a judge ever said, "Well, it's a really good cause, so it's okay if you use this song?"
No. This has been something that a lot of political candidates have found out within the past few years; they can't go out and use whatever songs they want under the guise of fair use, just because they think that they're promoting a good cause. There's no legal exception for causes that society thinks are good. Also in the complaint, GoldieBlox really makes a big deal about the objective they're trying to promote, of getting girls into STEM fields – which is great, but they conveniently leave out, except for a single sentence when they're describing the company, that they're selling a product and they're a toy company and this is a huge marketing push for them. So – it's not like they're a 501C3 with a stated goal of trying to advance women. They're trying to sell a product. If McDonald's was trying to sell a hamburger to further female empowerment, we would all look at it very differently. And now the Beastie Boys have called them out on what is effectively a marketing campaign, and a marketing campaign seemingly undertaken without any attempt to license any of the music that they used throughout.

What do you think motivated GoldieBlox to jump the gun and pre-emptively sue the Beastie Boys in the first place?
My personal take on it is that this legal case is a piece of their marketing plan when it comes to this video. The Beastie Boys are well known for the fact that they don't do any advertising, and GoldieBlox never asked for the license. They had this mega law firm, Orrick, conveniently on standby, so that as soon as any sort of threat or demand came through, they could file a suit. And interestingly enough, GoldieBlox has now changed the law firm that they're working with, to a much smaller boutique law firm that handles IT litigation; they represented Google in the Google Books settlement. I think it will be really interesting if this gets to the discovery stage, and GoldieBlox has to release the emails with their marketing team, and we'll be able to see what their actual thought process was when they were putting this together. Was it actually, "We think this will be the best way to empower women?" Or was it, "We think this is going to go viral, and then we know the Beastie Boys don't allow advertising, so we think this will turn a viral video into a six-month-long story."

It seems strange that GoldieBlox wanted to pick a fight with the Beastie Boys over "Girls," because they've literally apologized for the lyrics on that album. At this point, Ad-Rock and Mike D are pretty outspoken feminists.
Exactly. Yeah, it almost feels like reverse copyright trolling. Like they tried to bait the Beastie Boys into a situation where they could be sued. And as you said, the Beastie Boys are not really the people you should go after as a feminist organization for being the antithesis of your cause.

One comment I've seen people making online about the case is that it's ironic that the Beastie Boys are threatening someone with copyright infringement, given the ongoing legal dispute about their use of samples in their 1989 album, Paul's Boutique. In your opinion, is that a fair comparison?
From a legal perspective, yes, you're dealing with all the same issues of copyright infringement. I think from a moral and artistic perspective, the Beastie Boys would say that it's completely different, and I would probably agree with them. Whatever you think about sampling and its legality or illegality, it ultimately comes from an artistic place; it's about creating a new creative work. I think in a situation like the GoldieBlox case, it seems to be a lot less about creativity and a lot more about marketing. So legally, they are similar issues and they deal with the same set of laws, but I think certainly from the artists' perspective, they're night and day.

So what happens now?
What happens now is that federal court moves very slowly. So the case will move forward at some point; they'll have an initial case management conference scheduled, and then the parties will eventually get into discovery. My guess is that eventually this case is going to settle, once there's a lot of back and forth. Right now, the Beastie Boys are asking for a bunch of damages, not only for copyright infringement, but they have a handful of trademark claims and some right-of-publicity claims as well. They're asking for all the profits that were a direct result of using their trademark, and they can even ask for a disclosement of all the profits they've gotten, basically on the theory that you can't separate what came as a result of using the trademark and what came as a result of non-infringing activity. So GoldieBlox really stands to lose quite a bit of money here.

Where does the trademark violation come in? GoldieBlox didn't use the Beastie Boys' name or faces in their commercial.
But all the titling on YouTube and in social media identified the video with the terms GoldieBlox, Rube Goldberg, and Beastie Boys. So the trademark claim really goes to whether or not GoldieBlox was falsely associating themselves with the Beastie Boys, or falsely indicating that the band had in some way endorsed this, or were on board with it. If nothing else, they certainly tried to make it so that all of their marketing efforts were very SEO-friendly when it came to the Beastie Boys. I think they might be in more trouble for that than for the copyright claim.

Photo: Ebet Roberts/Redferns; GoldieBlox