A recent post on the Plagiarism Today blog (http://www.plagiarismtoday.com/2013/11/26/goldieblox-three-beastie-boys/) sheds some important light on the current copyright standoff between little girl empowering toy manufacturer Goldie Blox (with a seemingly positive mission statement), and the 80s /90s hip hop band Beastie Boys.
As is frequently the case in infringement claims the infringing party is shouting “fair use” from the rafters. While the advertising video for Goldie Blox is parody in style (using a Beastie Boy song), the video’s function is advertising to sell products. Its purpose is that of commercial gain. On the surface the infringement appears to be parody and therefore I understand supporters of Goldie Blox claiming fair use, but lets think about the intended function of parody in culture and why it can legitimately be claimed in some cases to fall under fair use. In an editorial or art function it is potentially about free speech. How can we have a discussion about social issues if we cannot use humor to investigate and engage information about the issues for communication purposes?
If Goldie Blox truly wants to use parody as a foundation for an advertising campaign then they need to hire artists to create original content and pay to license that content, or pay more to own it outright. Then they can use the creative content however they want. Instead they have appropriated existing intellectual property without permission and are attempting to hide behind the fair use doctrine claiming parody in the context of advertising to boost revenue.
Think of the consequences for independent artists if this type of reasoning was to become a legitimate fair use exemption. Corporations would be accelerating their exploitation of individual artists at an alarming rate. Steal original content, include anything that might hint at parody and have your army of legal counsel stand behind it on the basis of fair use. Bad news for artists indeed.
But, perhaps the most troubling observation in Mr. Bailey’s blog post is the revelation that it is actually Goldie Blox that has initiated a pre-emptive lawsuit against the Beastie Boys, seeking a judicial statement that the video is protected by fair use. This is obviously some pre-meditated corporate strong-arm tactic subverting the intellectual property rights of artists via a rather dubious expansion of the fair use doctrine. Artists everywhere should make sure they understand what is taking place here and its potential impact on their IP rights.
Interestingly, I cannot now find the referenced video online. Perhaps the backlash has already caused some reconsideration?