Merpel hopes her turkey disguise
will help her catch her dinner
Today, the Thanksgiving holiday, a day for giving thanks and sharing a hearty meal with family and friends [not to mention watching American football while dozing off on the couch] will be celebrated in the US. [Merpel licks her lips in anticipation of eating a dinner of roasted turkey, a traditional part of the Thanksgiving meal.] One of the things this Kat is thankful for is the existence of non-profit organizations like Girls on the Run, a US-based after school training course that culminates in a 5K fun run. The program, which this Kat has previously coached, teaches young girls to lead healthy and fulfilling lives through good nutrition and community involvement, and, in addition, helps girls develop the self-confidence needed to defy bullies, become leaders, and pursue their goals and dreams, including (if they desire) careers in traditionally male-dominated industries.
Toy company GoldieBlox, in its quest to encourage girls to explore male-dominated fields like engineering, recently released its latest commercial, which features three young girls singing alternative lyrics to the the Beastie Boys' song Girls, while playing with a Rube Goldberg-style contraption. In light of this Kat's long-running involvement of Girls on the Run and organizations with similar missions, this Kat enjoyed viewing the video, and thought it was quite clever.
Alas, according to The Hollywood Reporter, GoldieBlox's use of the song Girls was not authorized by the Beastie Boys. After the Beastie Boys threatened GoldieBlox with a copyright infringement suit, GoldieBlox filed a declaratory action seeking confirmation from the US District Court for the Northern District of California that the use of the Beastie Boys music in their commercial constitutes fair use as a parody of the original song.
GoldieBlox summarizes its argument in its Complaint:
In the lyrics of the Beastie Boys' song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities -- exactly the opposite of the message of the original. They are also shown engaging in activities far beyond what the Beastie Boys song would permit. GoldieBlox created its parody video with specific goals to make fun of the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.
A parody imitates a prior work for the purpose of satire or critical comment. Eric Ruder (Beanstalk) explains, "[b]y and large, the courts understand the importance which parody and satire play in our society and are willing to safeguard it, even when it is not merely for social commentary, but also for commercial purposes." However, even if the new work is considered a parody, it may still infringe the copyrights of the prior work unless the new work additionally constitutes fair use.
The factors that must be considered when determining if a work constitutes fair use are set forth in Section 107 of the Copyright Act:
(1) the purpose and character of the use, including whether such use is of a 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
These GoldieBlox girls are not
pleased by the Beastie Boys lyrics
In this case, this Kat thinks that the altered song created by GoldieBlox would be considered a parody for the reasons put forth by GoldieBlox in its Complaint. The thornier question for the court will be whether GoldieBlox's parody is a valid example of fair use. Considering that the video is, at its heart, a video of a commercial nature, the court will likely take a narrower view of the factors in its analysis.
However, in 1994, the US Supreme Court decided a similar case, Campbell v. Acuff-Rose Music, Inc., which this Kat thinks provides useful insights into how the US District Court for the Northern District of California may analyze this case. In Campbell, Acuff-Rose Music, the publisher of Roy Orbison's classic hit Oh, Pretty Woman, claimed that the song Pretty Woman by rap group 2 Live Crew and its lead vocalist, Luther Campbell, infringed Acuff-Rose's copyright in Oh, Pretty Woman.
As to factor one, the commercial nature of the video weighs against GoldieBlox, but the Supreme Court made clear in Campbell that this is merely one factor for consideration that does not necessarily bear more weight than any of the other factors. The second factor was held not to hold much weight in respect of the Campbell analysis, and it will likely not be a prevailing factor in GoldieBlox's action either.
The District Court's analysis of factors three and four will probably be the most influential in the outcome. This Kat thinks the third factor weighs more favorably for the Beastie Boys because the GoldieBlox version of the song uses the same musical composition from a large portion of the full length Beastie Boys song. On the other hand, a musical parody of a song must necessarily leverage more substantial portions of the original copyrighted work than is required for parodies expressed in other media.
Finally, in considering the fourth factor, the Supreme Court determined in Campbell that "[t]he cognizable harm is market substitution, not any harm from criticism. As to parody pure and simple, it is unlikely that the work will act as a substitute for the original, since the two works usually serve different market functions." The same can be said for GoldieBlox's parody of Girls - the two works are meant to appeal to two different audiences and serve very different market functions. Thus, this factor would seem to favor GoldieBlox.
Whether the District Court for the Northern District of California will ultimately consider the GoldieBlox video to be a parody that is protected as fair use or an infringement of the Beastie Boys' copyright remains to be seen. Watch this space for updates.
In the meantime, this Kat wishes a happy holiday to all those who celebrate Thanksgiving - and Chanukah, which overlaps with Thanksgiving this year.
Complaint available here (or in the Hollywood Reporter article, linked above)
Butterball Turkey How To's here