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Does Fair Use Protect Parody?

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GoldieBlox has one basic mission: to create toys that help girls develop an early interest in science, hospital technology, buy viagra engineering, and math. To promote its products during the holiday season, the company recently released a video that featured a version of “Girls,” a song by the Beastie Boys. On the surface, the parody–which featured different lyrics than the original–seemed harmless. But the Beastie Boys didn’t view it that way.

After GoldieBlox preemptively filed a lawsuit that claimed the company should indeed be able to use the song in its parody, the rap group wrote an open letter that read in part:

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

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.

So who wins this argument?

Well, as The Economist pointed out, “GoldieBlox filed a lawsuit commonly used in fair-use proceedings asking for a declarative judgement against the Beastie Boys, to affirm the advertisement’s status as a parody.” Fair use, the article explains, is “designed to allow parody, commentary and analysis that advance academic, political or social purposes.” However, in order to determine whether something qualifies for fair-use protection, a four-part test is administered. That often requires expensive litigation, so before parodying a song, artists usually ask permission.

But does GoldieBlox’s use of “Girls” qualify for fair-use protection? Unfortunately, there’s no clear answer. On his site, Waxy, Andy Baio summed up the situation well:

Different judges rule differently on similar fair use cases, and circuit courts commonly reverse fair use rulings from district courts on appeal. If even judges can’t agree on fair use, what chance do the rest of us have of understanding it?

In fair use, there’s no silver bullet and exceptions are the norm. Some parodies are fair use, others aren’t. Commercial use can weigh against a fair use ruling, but there are many notable commercial exceptions. Using a substantial amount of the original artwork can hurt your case, other times it doesn’t matter. Damaging the market value of an original artwork can hurt your claim or, as with parodies, it may not matter at all.

In the case of the Beastie Boys vs. GoldieBlox, however, no judgement was needed. Respecting the group’s wishes, the toy company eventually pulled the video, which had amassed 8 million views on YouTube. GoldieBlox even posted a letter addressed to Adam Horovitz and Mike Diamond–the two living members of the Beastie Boys–on its website.

“We don’t want to spend our time fighting legal battles,” it read. “We want to inspire the next generation. We want to be good role models. And we want to be your friends.”

What do you think? Was it fair use? Let us know!