Copyright and parody update: Beastie Boys and GoldieBlox get it together

Monday 7th April 2014

Last December we reported on the dispute between the Californian toy company GoldieBlox Inc and the surviving members of New York hip hop trio the Beastie Boys. After using the music of one of the Beastie Boys’ songs, “Girls”, and substituting its own lyrics, GoldieBlox had issued federal court proceedings against the Beastie Boys, in an attempt to forestall any copyright infringement suit from the musicians. The “pre-emptive strike” did not succeed, and the Beastie Boys counterclaimed for copyright infringement and several other causes of action.

This dispute would have made for a fascinating trial in the US District Court for the Northern District of California. But music fans and intellectual property lawyers have been deprived of such a spectacle. The parties have now settled their dispute out of court and, to judge from the company’s press statement, this was on the Beastie Boys’ terms. The company has posted an apology on its website and agreed to make a payment to one or more charities selected by the Beastie Boys which support science, technology, engineering and mathematics education for girls.[1]

The apology on the GoldieBlox website makes for instructive reading:[2]

We sincerely apologize for any negative impact our actions may have had on the Beastie Boys. We never intended to cast the band in a negative light and we regret putting them in a position to defend themselves when they had nothing wrong. As engineers and builders of intellectual property ourselves, we understand an artist’s desire to have his or her work treated with respect. We should have reached out to the band before using their music in the video. We know this is only one of the many mistakes we’re bound to make as we grow our business.

The great thing about mistakes is how much you can learn from them. As trying as this experience was, we have learned a valuable lesson. From now on, we will secure the proper rights and permissions in advance of any promotions, and we advise any other young company to do the same.

In their pleading, the Beastie Boys had pointed out that GoldieBlox had also used music by Queen, Daft Punk, Kaskade, Krewella, Avicii, Slam, k.flay, and Trevor Guthrie to advertise its products.

Meanwhile, in the UK and Australia…

Last week, the draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 were laid before the UK Parliament.[3] Along with other draft regulations providing for personal copies for private use, public administration, research, education, libraries and archives, and disabled people’s access, these draft regulations are the result of the 2011 Hargreaves Review of Intellectual Property and Growth.[4] They take advantage of the European Union’s Information Society Directive, which permits member States to provide certain exceptions to copyright protection.[5]

If approved by resolution of each house of Parliament, these regulations will insert a new section 30A into the Copyright, Designs and Patents Act 1988, providing that “[f]air dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.”

As we mentioned in our previous article, Australia already has an exception for parody and satire. The Australian Law Reform Commission (ALRC) last month tabled in the federal Parliament its report on Copyright and the Digital Economy.[6] The ALRC recommends that the Copyright Act 1968 (Cth) be amended to provide a general “fair use” exception for uses including parody and satire, instead of the specific “fair dealing” exceptions that apply at present. In doing so, the ALRC has expressly referred to the United States law of “fair use”.[7] It is uncertain whether the Australian

Government will take up this fair use proposal. As an alternative, the ALRC has suggested consolidating the existing fair dealing exceptions, including parody and satire, and extending these exceptions to certain new purposes. We will report again in the event that there is a major amendment to Australia’s copyright law.

In the meantime, while copyright law may be evolving in the UK and Australia, in New Zealand, parody, pastiche, satire and caricature remain risky business.
 


[1]http://www.rollingstone.com/music/news/beastie-boys-settle-lawsuit-over-girls-toy-commercial-20140318.
[2]http://www.goldieblox.com/.
[3]http://www.legislation.gov.uk/ukdsi/2014/9780111112717.
[4]http://www.ipo.gov.uk/ipreview-finalreport.pdf.
[5]Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001.
[6]http://www.alrc.gov.au/publications/copyright-report-122.
[7]17 USC § 107: see http://www.alrc.gov.au/publications/5-fair-use-exception/illustrative-purposes.

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