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Things are starting to get feisty in the epic battle that pits, well, boys against girls. Yes, the age-old conflict immortalized by such debates as Hot Wheels vs. Barbie Dolls has found a new manifestation surrounding a song that is ostensibly about gender roles. It’s not exactly the kind of fight that you might think of, however.

By now this story has pretty much made the social media rounds and has been extensively commented on by many of my esteemed colleagues (see here for an outstanding summary of the dispute and interesting commentary on merits of the suit, and here for a counter-viewpoint regarding fair use). For that reason, I won’t elaborate too much on the background for fear of boring readers (which I hope number more than a few) into leaving this site entirely. At the risk of being reiterative, here is the basic story. 


GoldieBlox, a company that helps young girls become acquainted with traditionally less-girly engineering and science vis-a-vis toys and games, produced a video that featured a parody of the famous Beastie Boy song “Girls”. The video went viral and lawyers for Beastie Boys asked GoldieBlox to cease their infringing action and removed the video. Fearing unfavorable legal action, GoldieBlox preemptively sued the Beastie Boys and one of the writers/producers of the song for a declaratory judgment that GoldieBlox did not infringe on Beastie Boys’ rights (yes, people who are accused of infringing often initiate lawsuits themselves to, among other things, strategically avoid being placed in a weaker position, see here for a similar scenario involving Marvin Gaye and Robin Thicke). Would GoldieBlox’s open letter to the Beastie Boys apologizing for the mishap and offering to withdraw the complaint sway the rugged rabble rousers from Brooklyn, or would the Beastie Boys stick it to Goldie and show the world that boys really do rule? The world was waiting to see if the other shoe would drop.

Well this week, it finally did. Beastie Boys fired a shot that landed more like a 55mm mortar than a BB (okay, that’s the last obviously stereotypical reference to boy-like things that I’ll make, I promise). The Boys said they weren’t going to back down and instead sought an injunction and money damages, including all revenues, gains, and profits from the alleged infringement received by GoldieBlox.

What is Goldie to do? Should we take sympathy on them because they are a small company looking to challenge the gender stereotypes and fulfill other worthy causes in the process? Or should we allow another icon to bring the hammer down and make yet another example of an early-stage business that thought they could outsmart “the man”? The usual legal arguments appear to be teed up: Beastie Boys is set to argue that Goldie exploited a popular song and made a clever switcheroo in the lyrics in the hopes of capturing the hearts and minds so it could sell more product. For their part, Goldie will argue that the song was really just a “fair use”, a cute parody that comments on the need to move away from old gender stereotypes and serve more worthier goals.

Think about Beastie Boys’ interest in the suit. Could it be all about the money? You see, in order to receive some kind of relief from an infringer, you have to prove that you, the copyright owner, suffered some kind of damage (or will suffer damage if you seek an injunction) as a result of the infringer’s actions. It seems difficult to quantify the benefit that Goldie received as a result of using the “Girls” spoof. After all, if the goal of Goldie was to simply capture some easy press based on a viral video, Beastie Boys may not have suffered any damages (especially since Goldie itself wasn’t selling the Boys song). But Goldie’s motivations seem, at the highest levels, to be financial because the company was seeking to gain fame. Any why else would a company seek that unless they warranted to curry favor with consumers and..... sell more products? But the products being sold by Goldie aren’t even remotely related to music.

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And the Beastie Boys themselves began this whole affair emphasizing that they were only interested in furthering the goal of the original songwriter for songs not to be used commercially. Indeed, at some point during the initial stages of this dispute, the Boys seemed to imply that they had no interest in taking Goldie to court. This prompted Goldie (which was no doubt shaking in its proverbial boots) to preemptively sue the Boys in an attempt to head off the issue. Taking it further, Goldie offered to drop the suit entirely if the Boys would only drop their bid to not play nice. And, well, you know the rest.

Is this a tragic case of two parties talking past each other? Goldie, knowing that they may have overstepped the copyright bounds by using a song to make a political statement, wanted to stem the tide of copyright infringement litigation without losing the positive press coverage they had so brilliantly wrought. The risk now for Goldie is that they face a protracted argument about over the nature of their use of the song. The Boys’ just wanted to serve a sacred and deeply-rooted desire of a former member and ensure that their artistic works were not corrupted by the stain of obvious commercialism. The risk to the Boys’ is that they could lose the suit and pick up some negative press that might not have otherwise befell them had they been willing to “play nice”.

The lesson here appears to be two fold: if you are a guy (or girl) looking to avoid litigation, don’t try and get fancy with procedural moves in the courtroom that may bring you deeper into a suit that you didn’t want to get involved in initially. Secondly, if you are a guy or girl trying to prevent someone else from using your book, song, movie, etc, be careful how you respond to someone who doesn’t get your permission first. Their use of your work may be permissible and you might just stir the hornets nest with an overly aggressive response. 


 


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