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(Pitchfork)   Now, here's a little story I got tell, about a trademark infringement suit that didn't go so well   (pitchfork.com) divider line 108
    More: Followup, trademark infringement  
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15222 clicks; posted to Main » on 18 Mar 2014 at 2:13 PM (40 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-03-18 03:55:18 PM  
I'd say that getting a settlement without the expense of going to court means the suit went quite well, there subby.
 
2014-03-18 03:56:12 PM  

Odd Bird: Where does subby get "didn't go so well"?
The parties settled, terms unknown.  Was subby a fly on the wall?  If so, squash him with the appropriate moderator.


This. A settlement is the best resolution for all concerned. And since the amount of the settlement is unknown, we don't know how much the company had to shell out.

We do know how much they WANTED to shell out: $0.

So it sounds like it worked out pretty well for the Beastie Boys. If they made enough to cover the cost of the lawyers, it worked the way it's supposed to.
 
2014-03-18 03:59:45 PM  
Adam Yauch's will prohibited the use of Beastie Boys songs in advertisements

Can a will even do that?  I think rights will be transferred one way or another to living people.  You might suggest, but I don't think we let people reach out from the grave like that.
 
2014-03-18 04:08:03 PM  

durbnpoisn: But "Brave"...  I don't see how a song about a woman wanting her friend to be brave and come out of the closet, has anything to do with Microsoft.


Even if you're unfamiliar with the rest of the lyrics, showing people buying your product, and having a song sound like it's describing their purchase as "brave" seems a little weird.
 
2014-03-18 04:13:35 PM  

durbnpoisn: But "Brave"... I don't see how a song about a woman wanting her friend to be brave and come out of the closet, has anything to do with Microsoft.


I'm really glad that bothers someone else.  Every time I see those ads I think, "There is nothing all that brave about using a Microsoft product."
 
2014-03-18 04:14:03 PM  

mcmnky: Is this a story that ends with them moving in with their auntie and uncle?


From the headline I thought it would be The Beverly Hillbillies.
 
2014-03-18 04:15:16 PM  

SueDisco: I'm really glad that bothers someone else.  Every time I see those ads I think, "There is nothing all that brave about using a Microsoft product."


Try doing it without AV software!

/zing
 
2014-03-18 04:15:59 PM  

impaler: durbnpoisn: But "Brave"...  I don't see how a song about a woman wanting her friend to be brave and come out of the closet, has anything to do with Microsoft.

Even if you're unfamiliar with the rest of the lyrics, showing people buying your product, and having a song sound like it's describing their purchase as "brave" seems a little weird.


There must be something to it.
Like, perhaps Microsoft knows that they have been losing the smartphone/tablet game since day one.  So they are encouraging people to step away from the other two, far more popular products.

If that's what they have to say to get people to switch over, it's probably no wonder they are losing the game to begin with.
 
2014-03-18 04:16:25 PM  

Rusty Shackleford: Stop saying "Legos", or I shall bring suit for Jimmy-Rustling.


They're Legos.  I'm 35 years old, and I've been calling them that my whole life.  I'm sure as hell not going to change now because some internet piss-ant told me to.
 
2014-03-18 04:17:12 PM  
The beastie boys were genuinely terrible.
 
2014-03-18 04:19:05 PM  

Thank You Black Jesus!: The beastie boys were genuinely terrible.


Really?

You're entitled to your opinion and all.  But those dudes were groundbreaking on a number of levels.  And plus, they were funny as hell to boot.
 
2014-03-18 04:29:12 PM  

durbnpoisn: Thank You Black Jesus!: The beastie boys were genuinely terrible.

Really?

You're entitled to your opinion and all.  But those dudes were groundbreaking on a number of levels.  And plus, they were funny as hell to boot.


My opinion, which I am entitled to, is No and No
they were genuinely terrible
 
2014-03-18 04:35:49 PM  

trappedspirit: Adam Yauch's will prohibited the use of Beastie Boys songs in advertisements

Can a will even do that?  I think rights will be transferred one way or another to living people.  You might suggest, but I don't think we let people reach out from the grave like that.


Wills absolutely can do that. It becomes a problem when somebody leaves a sum of cash to an organization with the provisions that it be spent on something specific, and something changes where the organization can't or won't spend do that task....

For example, Charles Goethe (one of the founders of Sacramento State College, now California State University Sacramento) left something like $20 million to the college with the requirement that it be spent on eugenics research. Of course, eugenics isn't considered science anymore by anyone, and is a taboo topic for a public college to study, so that money is just sitting in an account, unspent and collecting interest (which also cannot be spent).

Sometimes, an organization will go to court to modify the requirements for use of whatever property if something changes that makes fulfilling the requirements difficult or impossible. Courts will often approve narrow changes to these requirements.

Adam Yauch's requirements that his music not be used for for-profit advertising is actually fairly common, and enforceable.
 
2014-03-18 04:39:36 PM  
they are just lucky they hold the rights to their music.  Many artists are screwed over by the labels who hold the rights selling out to commercials.
 
2014-03-18 04:42:20 PM  
the two parties have come to a settlement, the terms of which are unknown.

Good. Like so many other people, I was very interested in the resolution of this case, but have no interest whatsoever in who won.
 
2014-03-18 04:42:41 PM  
2.bp.blogspot.com
 
2014-03-18 04:52:34 PM  

Thank You Black Jesus!: The beastie boys were genuinely terrible.


Can I ask a question: How old are you? Or, more importantly, how old were you in 1989?

In the context of this conversation, and further discussion of the importance of Paul's Boutique, it matters.
 
2014-03-18 04:56:24 PM  

Theaetetus: LemSkroob: Mein Fuhrer I Can Walk: GoldieBlox re-wrote the lyrics. It was a parody of the original, and therefore protected.

But it wasn't parody. Parody is to make fun of something for the sake of making fun of it. GoldieBlox took the song and used it to sell a product.

For Fair Use, the distinction lies in whether you're making fun of the infringed work, or targeting something else. For example, when Weird Al did "I'm Fat", he was making fun of obesity, not Michael Jackson, so it technically was satire, not parody, and not protected. However, when he did "I Perform This Way" and "Smells like Nirvana", he was making fun of Lady Gaga and Nirvana, respectively, so they were parodies, and would be protected.

This is why he always gets permission before he copies a song, incidentally.


Actually, no.

2) He always tries to get permission from the artist out of respect for the artist.
1) PARODY: a humorous or satirical imitation of a serious piece of literature or writing.

See? It can be satire AND parody.
 
2014-03-18 04:58:01 PM  

drumhellar: trappedspirit: Adam Yauch's will prohibited the use of Beastie Boys songs in advertisements

Can a will even do that?  I think rights will be transferred one way or another to living people.  You might suggest, but I don't think we let people reach out from the grave like that.

Wills absolutely can do that. It becomes a problem when somebody leaves a sum of cash to an organization with the provisions that it be spent on something specific, and something changes where the organization can't or won't spend do that task....

For example, Charles Goethe (one of the founders of Sacramento State College, now California State University Sacramento) left something like $20 million to the college with the requirement that it be spent on eugenics research. Of course, eugenics isn't considered science anymore by anyone, and is a taboo topic for a public college to study, so that money is just sitting in an account, unspent and collecting interest (which also cannot be spent).


Yes, you can put all sorts of conditions on bequests in wills that can bind your heirs. But there's the problem - the conditions apply to the  heirs...

... Adam Yauch's requirements that his music not be used for for-profit advertising is actually fairly common, and enforceable.

Enforceable on the heirs, but not necessarily on anyone else. For example, if Yauch owns the copyrights jointly with the other Beasts, then they can do whatever they want, including use the music in for-profit advertising... Only Yauch's heirs are bound by the will.

Furthermore, Yauch can only gift - and place conditions on - what he actually owns. For example, copyright is time-limited, but the will's conditions could be permanent... Clearly, however, he can't make a permanent restriction on the use of his music by  anyone - that would effectively remove it from the public domain.
Similarly, he can't make a restriction that would violate statutory compulsory licensing, or infringe on the public's fair use rights under 17 USC 107.

Yauch's requirement is pretty unusual - the common ones that shows up in celebrity wills are  publicity rights, not copyrights. And it may well be unenforceable against anyone except Yauch's heirs.
 
2014-03-18 04:58:12 PM  

Gonz: Thank You Black Jesus!: The beastie boys were genuinely terrible.

Can I ask a question: How old are you? Or, more importantly, how old were you in 1989?



This is, indeed, a relevant question.
In those days, there was really nothing at all to compare the Beaties with.  I mean, literally, no one was doing what they were doing.  Let alone a bunch of white dudes from NYC.

If you don't get it, that's fine.  But you can't deny the facts of their importance in music.
 
2014-03-18 04:58:20 PM  

Sin_City_Superhero: HotWingConspiracy: There's already building blocks for girls called Legos.

Unless they're making pink Legos now, Legos are for boys. Put some brownie mix in the EZ Bake Oven, and bring me a glass of milk.


Can't: Obama took away my incandescent light bulbs.
 
2014-03-18 05:00:38 PM  

ArcadianRefugee: 1) PARODY: a humorous or satirical imitation of a serious piece of literature or writing.


He is referencing a legal distinction, not a dictionary one.

Under the law of fair use, parody is most protected, as it involves the taking of a work and altering it such that it mocks the original work or author.  The reason this is more protected is that it is 1) highly unlikely that the original author will grant authorization to a work that mocks them or their efforts and 2) at least some of original work must be used if the point is to make fun of that original work.

Satire, on the other hand is the use of a work to humorously lampoon something else.  Thus it is less protected because there is far less of a need for to use that original work - you could always write your own song or what have you to make fun of that other thing.
 
2014-03-18 05:02:29 PM  

drumhellar: left something like $20 million to the college with the requirement that it be spent on eugenics research


Does the research have to be cost effective, and can it just study the effects of eugenics?

The university should setup a non-profit with 99% overhead. Have the nonprofit produce a study on the effects of eugenics in the 20th century, employing 2 graduate history students - cost $20 million. Their university's nonprofit now has $20 million, ear-mark free.

I'm not a lawyer or anything, but I'm pretty sure this is totally legal. Have them contact me for details.
 
2014-03-18 05:05:23 PM  
Don't mind me. Just bookmarking this for the helpful information on copyrights. As an illustrator who references a lot of media, I've encountered infringement more than a few times.
 
2014-03-18 05:05:59 PM  

ArcadianRefugee: Theaetetus: LemSkroob: Mein Fuhrer I Can Walk: GoldieBlox re-wrote the lyrics. It was a parody of the original, and therefore protected.

But it wasn't parody. Parody is to make fun of something for the sake of making fun of it. GoldieBlox took the song and used it to sell a product.

For Fair Use, the distinction lies in whether you're making fun of the infringed work, or targeting something else. For example, when Weird Al did "I'm Fat", he was making fun of obesity, not Michael Jackson, so it technically was satire, not parody, and not protected. However, when he did "I Perform This Way" and "Smells like Nirvana", he was making fun of Lady Gaga and Nirvana, respectively, so they were parodies, and would be protected.

This is why he always gets permission before he copies a song, incidentally.

Actually, no.


Actually, yes.

2) He always tries to get permission from the artist out of respect for the artist.
1) PARODY: a humorous or satirical imitation of a serious piece of literature or writing.

See? It can be satire AND parody.


Oh, I see... You missed the fact that we're talking about a legal definition, rather than a colloquial one. Let me help:
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. [n.14] Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. [n.15] See Ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).
 
2014-03-18 05:09:29 PM  
I remember Coolio getting upset that he didn't get permission for Amish Paradise, but I guess Amish Paradise would legally be a parody, and protected right?
 
2014-03-18 05:13:04 PM  

cwheelie: The Beastie Boys = The Adam Sandler of music


10/10 Lock your doors tonight. You trolled too successfully.
 
2014-03-18 05:14:54 PM  

impaler: I remember Coolio getting upset that he didn't get permission for Amish Paradise, but I guess Amish Paradise would legally be a parody, and protected right?


I'd say it may lean more towards the satire line. He's making fun of the Amish, not Coolio. He could have done so with a different song, and therefore it requires a higher justification for borrowing.

However, from the wiki:
Reportedly, Coolio's label gave Yankovic the impression that Coolio had granted permission to record the parody, but Coolio maintains that he never did. While Coolio claimed he was upset, legal action never materialized, and Coolio accepted royalty payments for the song. After this controversy, Yankovic has always made sure to speak directly with the artist of every song he parodied.

Coolio's label probably held the copyrights rather than him, so when Yankovic got a license from them, he was probably in the clear legally, even if Coolio never agreed.
 
2014-03-18 05:18:44 PM  

HotWingConspiracy: There's already building blocks for girls called Legos.

It's funny what a racket this shiat has become.


This. My eyes about rolled out of my head when I first saw an ad for these blocks. Why wouldn't girls want Lego? Lego is unparalleled.
 
2014-03-18 05:20:40 PM  

impaler: drumhellar: left something like $20 million to the college with the requirement that it be spent on eugenics research

Does the research have to be cost effective, and can it just study the effects of eugenics?

The university should setup a non-profit with 99% overhead. Have the nonprofit produce a study on the effects of eugenics in the 20th century, employing 2 graduate history students - cost $20 million. Their university's nonprofit now has $20 million, ear-mark free.

I'm not a lawyer or anything, but I'm pretty sure this is totally legal. Have them contact me for details.


In the US, a nonprofit can be audited once there's an indication that they're spending over some arbitrary amount on 'administrative overhead' as opposed to the core focus they were approved for when filing for nonprofit status.  That amount appears to range between 10% (at the severe end) up to 30% or so, with most 'good' organizations falling in the 20% range.

Half of the charities calling you asking for "Support for fraternal order of police" or other things like that are often scams that do exactly what you're saying - they pay out 90%+ of their income to salaries.  By the time they should be audited, they've already disbanded and consolidated under a new name.  If you ever try to track one of these places down, you'll find out that sometimes 5 or 10 charities are registered to the same address.

... but they're also not trying to disappear 20 million dollars tax free while staying in business as a legit organization.
 
2014-03-18 05:23:58 PM  
Theaetetus:

Coolio's label probably held the copyrights rather than him, so when Yankovic got a license from them, he was probably in the clear legally, even if Coolio never agreed.

Yeah from an interview i saw, it wasn't the threat of suit - its more that Weird Al is a classy dude and felt the whole scenario was unpleasant.

/why do all the "trademark" stories happen when i am at trial?
 
2014-03-18 05:42:30 PM  

xsarien: I argue that it wasn't parody simply because the original was satire. The point GoldieBlox was trying to make was already made...with the original.


The point GoldieBlox was trying to make was "buy our product".  And you aren't allowed to use someones song to do that without their permission.  Fair Use is not the same as "We want to make money".
 
2014-03-18 05:55:25 PM  

JuggleGeek: The point GoldieBlox was trying to make was "buy our product".  And you aren't allowed to use someones song to do that without their permission.  Fair Use is not the same as "We want to make money".



The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from  Sony, that "every commercial use of copy-righted material is presumptively . . . unfair. . .  Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.

The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term "including" to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into "purpose and character." As we explained in  Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country.Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that "[n]o man but a blockhead ever wrote, except for money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934).

Campbell v. Acuff-Rose Music, Inc., 510 US 569, 583-84 (1994).
 
2014-03-18 05:58:10 PM  

Theaetetus: viscountalpha: I thought fair use did NOT include advertisments. Even if they changed the lyrics, parody isn't allowed.

Not so... From 17 USC 107:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

It's one factor, but it's not dispositive, particularly if the other three factors tilt the other way.

Mein Fuhrer I Can Walk: GoldieBlox re-wrote the lyrics. It was a parody of the original, and therefore protected.

The mere fact that the lyrics were rewritten doesn't make something a parody. For example, many satirical works use rewritten lyrics, but aren't protected.

In this case, I'd tend to lean towards unprotected satire. Specifically, they weren't making fun of the Beastie Boys or the song Girls, but were rather making a satirical point about  other toys for girls that are pink and useless:
Girls, you think you know what we want
Girls, pink and pretty's it's girls
Just like the fifties it's girls

You like to buy us pink toys
And everything else is for boys
And you can always get us dolls
And we'll grow up like them, false
etc.


Exactly!  The Supreme Court decision that would be the ruling authority on these issues is  Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  There, 2LiveCrew "reworded" Roy Orbison's classic "Oh Pretty Woman" substituting their own lyrics for many of the original ones.  The Court said that it was only protected, because it was a parody/satire of the original work, and thus served as a commentary about same.  If their primary purpose was to provide commentary or criticism about an unrelated topic, but merely used the Orbison tune as the vehicle for doing so, their defense of parody would have failed.

Example:  If they took the tune and adapted it in some manner to comment upon the movie Pretty Woman, Julia Roberts or some other topic, then they would have lost the case according to the decision.

Just because you take song lyrics and alter them a bit, does not in any way give you a presumption that you created a parody that will overcome a claim of copyright infringement.  This is one of the most common misunderstandings I have run into for years in this field of law.  When I did a fair amount of work for a major record company, it was common to run into this issue.  I had little doubt that the people who created the work thought they were somehow protected or allowed to do so under "Fair Use" but the reality is far different.   There's a good reason why Weird Al pays royalties on every song he "covers" in his own unique manner.
 
2014-03-18 06:02:25 PM  

lawboy87: Just because you take song lyrics and alter them a bit, does not in any way give you a presumption that you created a parody that will overcome a claim of copyright infringement.  This is one of the most common misunderstandings I have run into for years in this field of law.  When I did a fair amount of work for a major record company, it was common to run into this issue.  I had little doubt that the people who created the work thought they were somehow protected or allowed to do so under "Fair Use" but the reality is far different.   There's a good reason why Weird Al pays royalties on every song he "covers" in his own unique manner.


Nope.  Fair use, is like shouting "not it" or "no backs" when a child.  As long as you say "fair use!" IP law doesn't apply to you.  Its part of the secret legal code of the US, the one the courts bring out when you write your name all in caps and recognize the admiralty flag.
 
2014-03-18 06:03:50 PM  

Hiro-ACiD: cwheelie: The Beastie Boys = The Adam Sandler of music

I was unaware Adam Sandler created ground-breaking standup that forever changed the comedy industry like the Beastie's second album did for the recording industry. Thanks for clearing up how important Adam Sandler is..


I threw the mattress in her face!

Fun freaking album.
 
2014-03-18 06:04:51 PM  

impaler: drumhellar: left something like $20 million to the college with the requirement that it be spent on eugenics research

Does the research have to be cost effective, and can it just study the effects of eugenics?

The university should setup a non-profit with 99% overhead. Have the nonprofit produce a study on the effects of eugenics in the 20th century, employing 2 graduate history students - cost $20 million. Their university's nonprofit now has $20 million, ear-mark free.

I'm not a lawyer or anything, but I'm pretty sure this is totally legal. Have them contact me for details.


I'm pretty sure the money is earmarked for "the advancement and promotion of the science of eugenics"
 
2014-03-18 06:06:37 PM  

Teiritzamna: Nope. Fair use, is like shouting "not it" or "no backs" when a child. As long as you say "fair use!" IP law doesn't apply to you.


Wow, what an amazing legal mind.
 
2014-03-18 06:11:33 PM  

drumhellar: I'm pretty sure the money is earmarked for "the advancement and promotion of the science of eugenics"


Working report title: "Eugenics - not quite as evil as recently suspect"
 
2014-03-18 06:12:28 PM  
This is why you intentionally screw up the melody.

I can also see where they're coming from with not wanting their music in commercials.  If I was a musician, I would be the same way (unless I specifically wrote/performed the music for a commercial).  Finding out "Like a Rock" was an actual song and not just a Chevy truck commercial... mind = blown.
 
2014-03-18 06:23:47 PM  

JuggleGeek: Teiritzamna: Nope. Fair use, is like shouting "not it" or "no backs" when a child. As long as you say "fair use!" IP law doesn't apply to you.

Wow, what an amazing legal mind.


Why thank you - its so rare to find kind words on fark.

You made my day!
 
2014-03-18 06:47:43 PM  

Hiro-ACiD: cwheelie: The Beastie Boys = The Adam Sandler of music

I was unaware Adam Sandler created ground-breaking standup that forever changed the comedy industry like the Beastie's second album did for the recording industry. Thanks for clearing up how important Adam Sandler is..


[i.imgur.com image 800x800]


The fact that album was made up of other peoples music rearranged like lego blocks makes this lawsuit even more stupid. It was a great record, but fark the Beastie Boys.
 
2014-03-18 07:20:27 PM  
It seems to me that the piece in question would stand as parody because it takes a song that somewhat demeans and dehumanizes females (using "girls" as a quasi-derogatory term for woman, unless the BBs were seriously talking about underage females; also stating that about the only things "girls" are good for are sex, cooking and cleaning*), and turns it into a song about female empowerment.

Though doing so just to advertise a product line is pushing it a bit.

* and here comes the fark Manly Man brigade to insist that this is the case!
 
m00
2014-03-18 07:44:53 PM  

viscountalpha: I thought fair use did NOT include advertisments.


Yep.

We really don't want to live in a world where advertisers can make a "parody" of a popular song, or recognizable image and then use that to sell some random product without getting permission from the copyright holder.

I like...Big...Banks and I cannot lie. You other brokers can't deny, that when a homeowner walks in with fitty grand of cash that you can add to your personal stash... You get CA-CHING.
 
m00
2014-03-18 08:01:32 PM  

squirrelflavoredyogurt: Here's an article which summarizes an article (and links to it as well as a court decision) about parody usage in advertising.

https://www.techdirt.com/articles/20131126/10224325381/myth-busting- ye s-advertisement-can-be-fair-use-parody.shtml

TL;DR version...

"More than any other, I've seen this myth repeated  everywhere. Can a company parody a famous artist's work and use it, against their will, to advertise an unrelated product? Actually, yes, as long as the use is transformative enough."


That article doesn't prove what it claims to. Example: "In fact, it's arguable that in the Liebovitz case, she actually had an slightly stronger claim than the Beastie Boys would have here."

Really? It is? Then make the argument. While the author may wish "proof-by-assertion" is a valid thing, it isn't. But basically the article is trying to equate a movie poster copying a magazine cover photo (aka posing a model in a similar fashion) with an advertisement directly copying the notes of a musical work. And it's completely different.
 
2014-03-18 08:02:32 PM  
The big difference I see between GoldieBlox and 2 Live Crew/Weird Al is the latter two specifically use the music as parody (or satire, as the case may be) in and of itself.  Their works stand on their own.

If GoldieBlox would have released their "Girls" version without a video, they arguably could have been doing the same thing as 2LC/Weird Al.  But they didn't.  The had the song released as a video, in which the girls were using GoldieBlox, and which plugged GoldieBlox at the end.  The GoldieBlox work in question is the audio-video pairing.  The video alone (i.e., silent) would not be a violation of the Beastie Boys' copyright.  The song alone might be parody or satire.  The audio in context of the video is where I think the problem lies.  It takes it from "this song is a fair use parody" to "this audio-visual combination does not qualify as fair use."

/Not a lawyer, so not necessarily on solid ground.
 
2014-03-18 08:21:00 PM  

RodneyToady: parody (or satire, as the case may be)

RodneyToady: The song alone might be parody or satire


See earlier in the thread... Parody and satire are not legally interchangeable in the copyright world.
 
2014-03-18 08:51:59 PM  

Theaetetus: RodneyToady: parody (or satire, as the case may be)
RodneyToady: The song alone might be parody or satire

See earlier in the thread... Parody and satire are not legally interchangeable in the copyright world.


That's why I qualified it.  But in either case, I think whether it's parody or satire is only part of the equation.  The nature of 2 Live Crew's song vs Roy Orbison's song is one song-vs-one song.  Same with Weird Al's song vs. any song he parodies or satirizes.  Apples to apples comparison.  This case is The Beastie Boys' song-vs-Goldieblox's song/video combination.  Apples-to-oranges comparison.  And for both Weird Al and 2 Live Crew, the song was an end in itself, rather than GoldieBlox's use which was a means to a separate end (i.e., selling GoldieBlox).

So one part is a debate on whether GoldieBlox's use is parody or satire.  Another part of the debate, I think, is whether the use of the Beastie Boys' work as Parody (option A) or Satire (option B) is Fair as a combined audio-video work as opposed to a strictly audio work.  Which is to say, is there a difference in determining if it's Fair Use (using either option) if the song was *only released as audio* as compared to *audio-video.*  And a third factor is if it matters that the audio-video combination was used for a different end (i.e., commercial) rather than an end in itself (i.e., the way 2 Live Crew and Weird Al do it).

So, in a way, the answer of "was Goldieblox's use of The Beastie Boys' song Fair Use" is determined by a 2 (is it parody or satire?) by 2 (does it matter than Goldie's work is audio-visual rather than strictly audio?) by 2 (does it matter if the use is an end-in-itself vs. a means to an end?) interaction.
 
2014-03-18 09:01:15 PM  
Not to be ageist, but are the Beastie Boys not senior citizens by now?
 
2014-03-18 09:50:17 PM  

RodneyToady: The nature of 2 Live Crew's song vs Roy Orbison's song is one song-vs-one song.  Same with Weird Al's song vs. any song he parodies or satirizes.  Apples to apples comparison.  This case is The Beastie Boys' song-vs-Goldieblox's song/video combination.  Apples-to-oranges comparison.


So you think the law would be different if Weird Al or 2 Live Crew made a music video?

And for both Weird Al and 2 Live Crew, the song was an end in itself, rather than GoldieBlox's use which was a means to a separate end (i.e., selling GoldieBlox).

Weird Al and 2 Live Crew both used the songs as a means to a separate end, i.e. selling albums.

So one part is a debate on whether GoldieBlox's use is parody or satire.  Another part of the debate, I think, is whether the use of the Beastie Boys' work as Parody (option A) or Satire (option B) is Fair as a combined audio-video work as opposed to a strictly audio work.  Which is to say, is there a difference in determining if it's Fair Use (using either option) if the song was *only released as audio* as compared to *audio-video.*

Well, in a way, it is different... But not in the way you think. The creation of the combined audio-video work is  more transformative than a strictly audio work, as it adds an entirely new creative element. Accordingly, this would tend to protect GoldieBlox more than Weird Al or 2 Live Crew, if that were solely a consideration.

And a third factor is if it matters that the audio-video combination was used for a different end (i.e., commercial) rather than an end in itself (i.e., the way 2 Live Crew and Weird Al do it).

See above - all three uses are commercial. As noted by the Supreme Court, almost every use noted in 17 USC 107 as Fair Use are commercial in some way in our society. Accordingly, the mere fact that one is advertising while the others are a good is not dispositive.

So, in a way, the answer of "was Goldieblox's use of The Beastie Boys' song Fair Use" is determined by a 2 (is it parody or satire?) by 2 (does it matter than Goldie's work is audio-visual rather than strictly audio?) by 2 (does it matter if the use is an end-in-itself vs. a means to an end?) interaction.

Actually, it's determined by a four factor test that's explicitly spelled out in 17 USC 107, but each factor is not simply a black and white dichotomy. Rather, each factor is weighed against each other to determine, overall, whether a use is protected.
 
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