English: The Beastie Boys - Adam Horovitz, Ada...

The Beastie Boys – Adam Horovitz, Adam Yauch and Michael Diamond (Photo credit: Wikipedia)

GoldieBlox made its first big public impression a couple of weeks back when it made use of the Beastie Boys’ classic “Girls” in a promotional video. That raises an interesting question: Is GoldieBlox using unlicensed music as a tactic in a bid to further its own marketing objectives? We wrote about this a couple of weeks ago on Privacy-Net.

GoldieBlox is a startup toy company, a creator of toys, with the avowedly positive mission of empowering young girls in technology and science. Its YouTube promotional video, incorporating a version of “Girls” went viral. GoldieBlox then sued the Beastie Boys asking the court to preemptively permit use of the tune under the auspices of “Fair Use” after the Beastie Boys sent a letter inquiring about the song’s use. GoldieBlox claimed that its altered version of the song qualified for “Fair Use” as a parody.

So far so good. An interesting aspect of the story to this point is that GoldieBlox went public in a big way before the Beastie Boys took any action. The result of this was the the video went super nova, aggregating millions of additional views and worldwide media coverage. It’s fair to ask whether this was a part of the plan or a happy coincidence. The fact that a fully formed filing came so quickly after the Beastie Boys’ letter leads one to question whether GoldieBlox was just waiting for the opportunity to use it.

Many people gave GoldieBlox the benefit of the doubt. Would the same thing have happened if GoldieBlox was a beer company? That’s more or less a rhetorical question. GoldieBlox is really the bully in this case, using the Beasty Boys’ copyrighted material, then picking and fight that makes the Beastie Boys look like bullies for enforcing their rights.

Now, there’s a follow up. GoldieBlox made use of the Queen anthem “We are the Champions” in a commercial this past summer.

This one’s really a head scratcher. There’s no attempt made to even change the lyrics or the music. It’s a straight up apparently unlicensed use of the original. This one apparently garnered only about 1 million views, compared with the more than 10 million views for the “Girls” video. Mission accomplished. Then GoldieBlox pulled the video (although for some reason, it’s still available here).

Felix Salmon of Reuters was fairly relentless in skewering GoldieBlox in a column on Reuters. He like me was fairly dubious in believing that this was an honest mistake. The “Fair Use” argument was obviously a loser that could have been seen by almost any lawyer. Salmon points out that Justice Souter writing for the Supreme Court in Campbell vs Acuff-Rose Music, wrote that “the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence” under the law than “the sale of a parody for its own sake”.

The real question, for us, is whether this was simply a case of “act now and apologize later” or really a concerted marketing strategy. In either case it’s a disturbing phenomenon in the world of music and marketing.

 

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