The Beastie Boys have won their fight. Sort of.
Today, via an open letter to the Beastie Boys on their blog, toy company GoldieBlox agreed to pull the song “Girls” from their controversial ad.
GoldieBlox didn’t cede use over the merits of the Beastie Boys’ claims that the use of the song in their ad constituted copyright infringement. Instead, they focused on honoring the terms of Adam Yauch’s will – which may or may not be enforceable – which barred the use of Yauch’s image or music in advertising. GoldieBlox said, about the will, “[w]e want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising.” They followed up by saying that, “[a]lthough we believe our parody video falls under fair use, we would like to respect his wishes and yours.”
The specific clause that GoldieBlox is referring to is this one:
Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.
Part of the phrasing was added by Yauch in his own writing – something tax and estate planning lawyers like me advise against since handwritten additions, called interlineations, often cause complications and can, in some instances, invalidate an entire will. Whether the clause would be enforceable is debatable although, as I noted, it does clearly establish Yauch’s intent, which could go a long way in a court battle.
In this case, the terms of Yauch’s will might not have even been relevant from a legal perspective since the key issue – whether there was copyright infringement – might make Yauch’s wishes moot (again, from a legal perspective). A will only controls property rights belonging to the decedent. If the copyright in the original work wasn’t violated, then the will isn’t applicable. Additionally, joint ownership of a copyright, as is the case here, allows each of the owners the right to do what they want with the music so long as there is appropriate compensation. Yauch – or any other joint copyright holder – cannot, on his own, control the disposition of joint copyright (though clearly, the other Beastie Boys were opposed to the use in this case). Again, none of that matters if a court had found no infringement.
It appears that the copyright infringement issue might have tilted in GoldieBlox’s favor. GoldieBlox claimed that the use of the song, which sported completely new lyrics, qualified as fair use as a parody. The Electronic Frontier Foundation (EFF), a prominent organization that focuses on the treatment of property, intellectual and other rights in cyberspaces (perhaps best known for taking on the NSA spying program) sided with GoldieBlox on the issue, noting that “the fair use analysis is solid.” EFF went even further, saying about the company’s use of the song, “That kind of creativity what fair use is for. And it’s part of what made the Beastie Boys great.”
Nonetheless, GoldieBlox has backed down, saying that they are ready to pull their lawsuit. They have already removed the song from the video. The new version of the ad, with a tune, according to spokesperson Abby Dixon, which was created by the company, can be found here:
GoldieBlox said in their letter to the Beastie Boys about the changes:
We don’t want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.
