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ETA: This post was written on 26 November, before GoldieBlox had removed the video in question -- it couldn't be slotted into the editorial schedule until 27 November. I stand by what I say here in terms of transformative works and the potential legal defensibility of the video under discussion, but I will also note that from an ethical perspective, I feel GoldieBlox did the right thing by deferring to the wishes of the original creator. That said, it's important to evaluate the legal circumstances of such cases, and to consider their potential ramifications for other transformative works. Regards, s.e.
I read Joanna Schroeder’s defense of the Beastie Boys this morning with much interest, and, ultimately, much dismay. The story it tells is of two surviving band members bravely protecting the legacy of their deceased counterpart, a man who felt so strongly about the use of his work for commercial purposes that he explicitly spoke against it in his will.
The Beastie Boys versus GoldieBlox battle cuts close to my heart because I love the Beastie Boys, and I love companies developing anti-sexist takes on products, but I also love fair use.
And in this particular instance, the Beastie Boys are wrong. The celebration of their fight against GoldieBlox is missing a key component of the situation here, which is that the GoldieBlox video, which perhaps not ethically defensible given the expressed wishes of Adam Yauch, could very well be perfectly legal. And you should want it to be, because fair use and transformative works lie at the heart of so much of art, culture, criticism, and society.
Copyright is a tricky thing, and the protection of copyright occasionally involves walking through a minefield. One thing copyright does not provide, however, is total control of the given work, if someone can demonstrate that another application falls under fair use. For example, another publication can quote copyrighted material from this piece for the purpose of discussion and criticism, and that’s fair use: the author might need to contextualize what’s being discussed. I couldn’t sue Jezebel, for example, for pulling a quote from this article on the grounds that I didn’t consent to it, because I did, by putting it out in the public commons for discussion and critique.
And when it comes to works of art, it’s routine to use reproductions, clips, and other representations of media for the purpose of criticism. But more than that, transformative works bring an entirely new twist to the equation: it is transformative works that allow people to create parodies, commentaries, and more from copyrighted works, and this is a good thing. Transformative works expand the discussion, enlarge our world, and create new and beautiful works of art that enrich all of us.
I approach this issue from the position of someone who spends a great deal of time in fannish communities and with groups like the Organization for Transformative Works, which dedicates itself to celebrating and protecting transformative works as a form of fair use. Every piece of fanwork archived on the Archive of Our Own (AO3) is fair use, for example, because it substantially transforms the given work and creates a new artistic product.
Which is what GoldieBlox did with their video. They took a song with intensely misogynistic lyrics (arguably itself a parody of misogynistic rap) and turned it on its head in an anthem to female creativity and girl power. Yes, that ad was indeed used to market a product, but fair use for commercial purposes actually has a legal precedent:
...even commercial uses can be fair when they involve repurposing of content, or adding value to it, such as but not limited to parody, criticism and commentary...[works] are strongly transformative when they use a work in a new way and serve a new market from the one the original was intended to serve.
In the comments, Lex_Discipulus beautifully articulated why the legal side of right here may lie with GoldieBlox, not the Beastie Boys:
1) purpose and use (Has the material you have taken from the original work been transformed by adding new expression or meaning? Yes. Was value added to the original by creating new information, new aesthetics, new insights, and understandings? Yes)
2) nature of the copyrighted work (if it is published and ‘out there’ it is more likely to be fair use. The creator of the work has the right to determine the ‘first viewing’ GB seems to win this one too)
3) the amount and substance taken from the copyrighted work (Basically less is more. BUT if you take the ‘heart’ of the work you can come up with a problem (unless you are doing a parody, in which case you can take as much as you want) This is harder bc [are] the lyrics the heart? I would say yes, but you can easily argue that the notes of the song are the heart of it)
4) effect on potential market (Is your use depriving the owner of income? Nope.)
That doesn’t mean the burden isn’t on GoldieBlox here: they filed a preemptive suit (contrary to initial reports, the Beastie Boys didn’t sue or threaten the company, but simply approached them for information) and are clearly trying to spark controversy, which generates attention. Historically, judges have been less lenient about transformative works for commercial use, treading carefully to ensure that copyright is protected. And this, too, is a good thing, because in such legal battles, it’s often small creators against huge companies that do want to rip off their work for profit; see the scores of small Etsy sellers fighting stores like Anthropologie and Urban Outfitters, for example.
The company certainly hasn't behaved in a very well-mannered way here -- as Felix Salmon points out in his analysis of the situation (which dissents from my own, so you should check it out to get a different take), the company moved suspiciously fast with that lawsuit, and of course it has a history of repurposing videos without so much as a by your leave. That's kind of the point of the company's stated practice of disrupting assumptions about gender and society, and legally it may not need to ask permission (as discussed at length above), but it's clearly behaving like many other hotheaded Silicon Valley startups.
I feel for the remaining members of the Beastie Boys in this case, because it hurts to feel like your own work is spinning out of control and may be used for purposes you don’t approve of (for the record, the men actually support the work of GoldieBlox). But ultimately, in a clash between a man’s dying wishes and the huge and very delicate legal framework that supports fair use and transformative works, I have to support transformative works: for myself, for all the others who rely on the ability to use and create transformative works, and for society in general.