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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 23
    More: Followup, trademark infringement  
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15175 clicks; posted to Main » on 18 Mar 2014 at 2:13 PM (23 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-03-18 01:05:58 PM
4 votes:
Subby: Now, here's a little story I got tell, about a trademark infringement suit that didn't go so well

Article:  After toy company GoldieBlox used the Beastie Boys' song "Girls" in an ad, the Beasties sued due to copyright infringement... The company initially made the argument that their commercial parody of the "highly sexist" song was covered under the Fair Use Doctrine. The band disagreed, arguing that it was copyright infringement.

It's not like it would've screwed up your already broken meter further to use the correct term, Subby.
2014-03-18 02:33:49 PM
3 votes:

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.
2014-03-18 05:55:25 PM
2 votes:

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 03:39:44 PM
2 votes:

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
2014-03-18 03:13:00 PM
2 votes:
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."
2014-03-18 02:51:13 PM
2 votes:

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.
2014-03-18 02:19:02 PM
2 votes:
You gotta fight!
for your right!
to ex parte!

/got nothin
2014-03-18 08:02:32 PM
1 votes:
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 05:58:10 PM
1 votes:

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 05:20:40 PM
1 votes:

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 05:05:59 PM
1 votes:

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 04:58:12 PM
1 votes:

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 04:58:01 PM
1 votes:

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 04:29:12 PM
1 votes:

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 04:17:12 PM
1 votes:
The beastie boys were genuinely terrible.
2014-03-18 04:16:25 PM
1 votes:

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 03:01:02 PM
1 votes:
There's already building blocks for girls called Legos.

It's funny what a racket this shiat has become.
2014-03-18 02:53:13 PM
1 votes:
The Beastie Boys = The Adam Sandler of music
2014-03-18 02:47:10 PM
1 votes:

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.
2014-03-18 02:32:51 PM
1 votes:

durbnpoisn: Cinsidering that Yauch expressly forbid usage of their music in his will, I'm glad this lawsuit settled away.

In related news...  I cannot believe how quickly artists are selling out their music for ads nowadays.  It used to be that a song in an ad had been around for a generation or so before ads started using it.  Now we see ads using songs, unaltered even, that are still on the mainstream charts!


Sometimes, back in them days, Ads sold out the songs:  http://www.youtube.com/watch?v=eP1dYj2hGss
2014-03-18 02:25:32 PM
1 votes:
I thought fair use did NOT include advertisments. Even if they changed the lyrics, parody isn't allowed. If it was, I doubt it would have been settled.
2014-03-18 02:22:14 PM
1 votes:
GoldieBlox re-wrote the lyrics. It was a parody of the original, and therefore protected.

There should have been no suit, regardless whether Youch stipulated ad use in his will.
2014-03-18 02:15:36 PM
1 votes:
I thought that song was about squirrels.
 
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