The Failure of Fair Use: Goldieblox v. the Beastie Boys

Curator's Note

Goldieblox was one of the most talked about toys of the holiday season. Started through a Kickstarter campaign in 2012, the toy is designed to teach girls how to create machines and problem solve as an early tool to welcome them into STEM fields. Goldieblox released a viral video with an ethnically diverse group of girls using a Rube Goldberg machine. The video included a parody version of the Beastie Boys track "Girls." The Beastie Boys have a long history of protecting their music from any form of advertising; the request was made expressly clear in the will of the late Adam Yauch. This entry will examine the how fair use is constructed to fail the ambitions of the innovator (Goldieblox) to maintain the protection of the established (the Beastie Boys).

Fair use was written into copyright law in 1976 as an exception for free speech for the use of parody or critique. There are four conditions for fair use: is the work transformative, does it damage the original work, how much of the original work used, and does it change the value of the original work. The cover turns a track with misogynistic lyrics into something empowering, but does that qualify as transformative? The damage done to the original work is that the owners do not want their work used in advertisements. The Goldieblox video may be viral, but it certainly sells their product. Not much of the original work was used and Goldieblox does not change the value of the original work.

Goldieblox claimed their version is a parody and protected by fair use, but that does not mean they are free from litigation because fair use is an affirmative defense, meaning Goldieblox would admit they violated copyright law and the court would decide if the video is fair use. Further, each fair use case is decided in a vacuum and there is no fair use precedent set by a case at any level. Fair use cases do not often go to trial, because the cases are expensive to try, so most cases are settled out of court. The original Goldieblox video is hard to find, but that is not a loss. The revised version still holds the same energy that girls are able, smart, and willing to change the world to fit their needs.

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