The Beastie Boys shot to fame in the late 80’s with their party manifesto ‘Fight for Your Right’, a parody on US college frat culture. Now it seems that that the ghetto blaster of parody has been pointed right back in their direction.
Last week, in no uncertain terms, they set out their disapproval of the use of their track ‘Girls’ by toy manufacturer Goldieblox, who parodied the song in a viral advertisement. The video has already received over 8million views on YouTube - this caused a pre-emptive strike by Goldieblox asking the court to confirm that they have no need for the Beastie’s permission, as their version parodies the original and falls under the exemption, ‘fair use’ (This applies principally in North America only, though the UK may soon follow suit).
So while we await the initial decision on that it’s worth reflecting on the following:
1. The Beastie Boys don’t mind a bit of parody.
They’ve made a career out of referencing, juxtaposing and sampling. It goes with the territory. Ke$ha has already made her parody version of the song - ‘Boys’, seemingly without much protest from the Beasties.
2. But they don’t like advertising.
They have always objected to the use of their music in advertising and the recently departed Adam Yauch even set out an objection in his will. But that won’t matter if the court decides that fair use applies.
3. In order for fair use to apply the new work needs to be a sound basis for parody.
Goldieblox claim that they parody the original song on the basis that “girls are heard singing an anthem celebrating their broad set of capabilities - exactly the opposite of the message of the original”, though arguably the original is delivered ironically, by the voice a protagonist who ends up losing the ‘girl’ he is after to someone else because of his attitude. Perhaps, not “opposite” then?
4. It could be more than just an advert
There has been a lot of creative effort in producing it (something which the Beasties acknowledge in their complaint) so arguably it has an intrinsic value as a ‘work’ backed up with a ‘positive’ message. It’s probably fair to say that Goldieblox wouldnt have bothered with the video if they didn’t want to encourage girls to become spot-welders by buying their products but this may not matter from the point of view of the ‘parody’ exemption.
5. Goldieblox may have taken too much porridge
The advert runs at around 2 mins. Back in the 90s when ‘2 Live Crew’ received a judgment in their favour from the Supreme Court stating that their parody of Roy Orbison’s ‘Oh, Pretty Woman’ (including lyrics such as “Big hairy woman you need to shave that stuff. Big hairy woman you know I bet it’s tough”) was covered under a fair use exemption, the court acknowledged that although parody would need to include enough of the original work to make it recognisable, it would be unreasonable to take so much that it simply served as a “commercial substitute” so in this case there may be too much of the song used to be ‘reasonable’ for a parody.
All these things will be for the court to weigh up and there is presently no precedent to say that a parody can’t be used for the purposes of an advertisement and similarly none to say that it can. So, while this exemption does allow for songwriters and ad agencies to think creatively about their campaigns the exemption should be used with due consideration.
James Jackson is a musician, Synkio’s in-house Director of Commercial Affairs and a Director at JL law firm
