GoldieBlox v. Beastie Boys: Is It Fair Use?

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Many startup companies place their hopes for expansion on crowdfunding as a way to raise money. Not all companies that try are successful, but GoldieBlox’s dream came true. The company’s Kickstarter campaign exceeded their $150,000.00 goal and raised close to $300,000.00 by October 2012.

GoldieBlox is a toy company focused on giving girls the tools to become innovators and builders. According to the company’s website, “By designing a construction toy from the female perspective, we aim to disrupt the pink aisle and inspire the future generation of female engineers.”

With more than 5,000 people backing their project, the concept struck a nerve and tapped into a sentiment that many agreed with. Their following increased quickly and GoldieBlox toys were on the move, being sold from the highly coveted shelves of Toys”R”Us.

2013 – Video Goes Viral

On the company’s blog, CEO Debbie Serling reflects back month by month on all that happened in 2013.

In April 2013, GoldieBlox won the Shopify Build-A-Business competition and was mentored by many, including Daymond John of the acclaimed television show for entrepreneurs, Shark Tank.

In November, the excitement continued to build. As explained on the company’s blog: “This month we shot, edited and launched a video featuring a Rube Goldberg machine made out of princess toys. In one week, the video received over 8 million views. It was featured on the TODAY show and Good Morning America and tweeted by Ellen, Barbie and Pee Wee Herman. Girls from around the globe got inspired by the video and started building their own Rube Goldberg machines in their living rooms and backyards. Right after the launch of the video, I attended the Chicago Toy and Game fair where I received the “Rising Star” inventor award.”

The wildly popular video mentioned above featured a rewritten version of the 1987 Beastie Boys song, “Girls.” GoldieBlox considered the Beastie Boys song to be highly sexist and made a video using the song to show a contrasting message of empowering girls to do and be anything they want.

In November, GoldieBlox filed a lawsuit in a California Federal Court seeking that the Court provide a Declaratory Judgment stating that the video constituted fair use and did not infringe on the Beastie Boys’ copyright in the song. The Beastie Boys responded with an open letter, explaining that the video is an advertisement that is designed to sell a product and that the group does not permit its music or name to be used in product ads. GoldieBox also followed up with its own open letter and ultimately took the video down. And in December, the Beastie Boys responded in Court by answering the Complaint and filing counterclaims against GoldieBox.

Fair Use and U.S. Copyright Law

While copyright owners have the right to reproduce or authorize others to reproduce a work, that right is subject to certain limitations, including the doctrine of “fair use.” The doctrine has developed over the years through many court decisions and has been codified in section 107 of the Copyright Act.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair and also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose or character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

On its website, the U.S. Copyright Office explains that what is fair use and what is copyright infringement is not always clear. Further, acknowledging the source of the copyrighted material is not a substitute for obtaining permission. The Copyright Office also notes, among other things, that “[t]he safest course is to get permission from the copyright owner before using copyrighted material,” that “[w]hen it’s impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation,” and that “[i]f there is any doubt, it is advisable to consult an attorney.”

2014 – A New Year’s Update

Determining what is a fair use and what is an infringement in a particular case is not easy and requires a case-by-case analysis. Whether GoldieBlox’s use constituted copyright infringement or fair use remains to be seen. However, it is possible that the parties end up resolving the case through a settlement (the case docket shows that on January 6, 2014, the parties agreed to an extension of time for GoldieBlox to respond to counterclaims and explore settlement options), in which case the litigation may not result in a decision on the merits. Stay tuned.