Fair Use Lessons From GoldieBlox’s Battle With The Beastie BoysBy Ellie Cachette December 11th, 2013
GoldieBlox has put a whole new spin on how to make a video go viral.
In the lead-up to Black Friday, the startup toymaker released a video showing young girls building a Rube Goldberg machine to the tune of the Beastie Boys’ song “Girls.” Except, they replaced the old, misogynist lyrics with empowering refrains.
Girls – to do the dishes
Girls – to clean up my room
Girls – to do the laundry
Girls – and in the bathroom.
Girls – to build a spaceship
Girls – to code a new app
To grow up knowing
That they can engineer that.
It was a brilliant content-marketing move by GoldieBlox, whose focus is building toys that help girls develop the skills and passion to become engineers. And with an assist from UpWorthy, the video quickly went viral. If you know GoldieBlox’s background, it wasn’t that surprising. GoldieBlox CEO Debbie Sterling is a Stanford grad with a background in producing viral videos. Her husband, who also works at GoldieBlox, specializes in creating videos as well.
More surprising was that, after the Beastie Boys sent an open letter to GoldieBlox accusing the company of copyright infringement, GoldieBlox preemptively sued The Beastie Boys, asserting their Fair Use rights to the song. That made headlines across the company, and gave the video a second viral boost. It was the perfect PR storm and a recipe for tons of buzz.
Eventually, after a week of media coverage, GoldieBlox dropped the lawsuit and replaced the song in the video. But, legally, did they have a case for the Fair Use of “Girls”?
They might have. Rachel Sklar, an attorney and media critic, explained on Medium that Fair Use is defined on a case-by-case basis, based on “the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.” She believes that GoldieBlox had an argument for Fair Use.
Here’s what GoldieBlox did to justify Fair Use, the factors working against them, and what brands can learn from the case as a whole.
Pro: They included a strong element of social commentary.
As Sklar notes, GoldieBlox’s strongest argument was that the primary intention of the video was to be social commentary, not a commercial endeavor.
“GoldieBlox created its parody video specifically to comment on the Beastie Boys song, and to further the company’s goal to break down stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math,” they wrote in their complaint.
The parody angle is huge. As Sklar notes, there’s already precedent for a commercial parody qualifying as Fair Use.
Lesson for Brands: If you’re going to shoot for Fair Use protection, make the video a parody, and infuse your video with a strong, non-commercial message.
Pro: They chose an old song.
The fourth factor considered in Fair Use cases is “the effects of the use upon the potential market.” By choosing a nearly three-decade old song, GoldieBlox reduced any risk of being accused of hurting the Beastie Boys’ potential market.
“Here’s where GoldieBlox catches a break,” Sklar writes. “Because, seriously, the Beastie Boys really think this is going to cut in on the massive demand for ‘Girls’? C’mon. If anything, this just reminded millions of people of the song “Girls” and probably a bunch went to download it. I bet if someone checked out iTunes there would be a spike.”
Lesson for Brands: Use older media whose sales you won’t negatively impact.
Con: They used the whole song.
This hurts GoldieBlox in two factors: “the amount of copyright work used” and “nature of the copyrighted work.” Even though GoldieBlox changed the lyrics, the melody stayed exactly the same. If they would have made the video significantly shorter than the song, they could have argued that they only sampled part of the song. Then again, Sklar argues, using the whole song “is a point in favor of establishing parody.”
Lesson for Brands: Be careful about using entire songs, but don’t let that hurt the argument that your use counts as parody.
Ultimately, both the GoldieBlox and the Beastie Boys scored a win from this whole ordeal. GoldieBlox got tons of free press, and the Beastie Boys briefly returned to relevancy. And GoldieBlox was smart to drop the suit and remove the song. For a startup with limited resources and no guarantee of winning, it was the only logical move. Now, they’re a household name — just in time for the peak of the Christmas shopping season.
Plus, the new version of the video, which has generic music in place of “Girls,” has still attracted over 1.1 million views. Check it out below.
What’s the deal with the Content Strategist? At Contently, storytelling is the only marketing we do, and it works wonders. It could for you, too. Learn more.Image by Iain Mullan / Flickr.com