"Girls" Parody or Just Infringement?

Some of our readers may be familiar with this video by San Francisco start up toymaker, GoldieBlox, which recently went viral.  The company develops science and engineering-related toys for girls.  In the video several young girls build a Rube Goldberg machine to turn off a television.  The soundtrack is a version of the Beastie Boys song "Girls," but with new, female-positive lyrics.  The Beastie Boys were not pleased about the use of their song.  When the band attempted to confront GoldieBlox about use of the song, GoldieBlox rapidly filed a lawsuit in U.S. District Court for the Northern District of California seeking declaratory judgment that their use of the Beastie Boys song was parody, and accordingly fair use, not copyright infringement.

In an open letter to GoldieBlox, which the Beastie Boys shared with the New York Times on Monday, the group maintains that they support the work and the message of the start up, but are committed to keeping their music out of advertisements. The band argues that the video was designed to advertise and sell GoldieBlox toys and that using the new version of the song is copyright infringement.

GoldieBlox maintains that their version of the song is not just devised for selling toys, but intended to comment on the original while empowering young girls.  As the complaint states:

In the lyrics of the Beastie Boys’ original song, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers. The girls are objects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls by the Beastie Boys but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. GoldieBlox Girls are the subjects; they are the actors taking charge of their environment.

Under U.S. copyright law, fair use of a copyright-protected work is determined by examining the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work.  In the case of parody, the threshold question is whether a parodic character may reasonably be perceived.  In examining parody one must consider the critical bearing on the substance or style of the original.  Undoubtedly, the original version of the song, recorded in 1986, is degrading to women, referencing the desire for "girls" to do the dishes and the laundry.  The song featured in the GoldieBlox video substitutes new lyrics about girls building spaceships, writing code, and engineering that would seem to bear rather directly on the demeaning character of the original.  

The complaint was filed late last week, and attorneys for the Beastie Boys have yet to appear.  As the band has become far more socially and politically conscious over its long existence these would seem particularly difficult public relations to navigate, and it will be interesting to see how this lawsuit unfolds, if at all.