Fair Use, The Beastie Boys, and GoldieBlox

Kirk says to Spock, "Is this image copyrighted? What about fair use?"

An example of a copyrighted image used in a way that I think is fair, especially in this context, on this blog post.

In class yesterday (Oct. 7), the 2 p.m. class discussed a recent example of fair use, but the 10 a.m. class didn’t get to it. (They had more questions about the in-class essay, which is fine.)

But I like this story so much that I want to briefly share it anyway, in really, really reduced format. I’m telling it to help flesh out our discussion of fair use, which is useful both as something you might write about in the in-class essay and as something you’ll need to consider when using copyrighted images, audio, and video in your final project.

The Story

It starts with a song: the Beastie Boys’ “Girls” from the 1980s:

If you didn’t stay to the end of the song, don’t miss the lyrics “Girls to do the dishes / girls to clean up my room / girls to do the laundry” and so on.

Skip ahead to 2013, when toy-makers GoldieBlox used a very familiar song to sell their engineering toys for girls. I can’t embed it, but you can (and should) watch it here.

What happened next is a bit too complicated to write about briefly here; it involves GoldieBlox asking a court to declare their use fair (which didn’t happen), the Beastie Boys asking GoldieBlox to change the song in the video, the wishes of one of the dead Beasties to never use a song in a commercial, GoldieBlox changing the song, the Beastie Boys suing anyway, and an eventual settlement out of court–which means we’ll never really know if a court would have declared it fair or not. If you’re interested in learning more, you can Google the story or read a summary I wrote of all the twists and turns here (a big pdf that includes my write-up of the situation starting on p. 24, or p. 27 of the pdf).

So what?

But for us, right now in this class, the case is interesting because of the fair use questions it brings up. Like, if we use the fair use checklist from class (pdf) to evaluate if GoldieBlox’s use of “Girls” was legally fair, we end up with kind of a messy situation. To take one example, if we just focus on the Purpose factor, there’s a sense in which the use of “Girls” was for “criticism” (I mean, did you hear the original lyrics? They’re clearly criticized in the new version), but there’s also a sense in which it’s for “commercial activity.” It’s both.

That’s right: it’s both. Fair use often works like that, in the messy world of uncertainty, where we can argue that our use of a copyrighted work is fair, but without really really knowing for sure until a court says it’s fair or not.

Oddly, though, my message to you isn’t “therefore, you ought to avoid making new stuff from copyrighted works.” Yes, using works licensed by Creative Commons is in some ways safer, but sometimes it just doesn’t work. Sometimes we really need to use a copyrighted work to help us make the point we need to make! (For an academic article discussing someone who felt just this sort of rhetorical need to use copyrighted stuff, see “Grand Theft Audio.”)

So instead of using my best Dracula voice to say, “BEWARE!!!” I’m really saying, “Be smart.” Use the fair use checklist so you know what you’re getting yourself into, and preemptively write fair use statements to help you argue that you know what you’re doing and are almost certainly in safe legal ground. (That sample fair use statement of mine we saw in class is here, at the bottom of the page; it’s a good example of how to expressly address all 4 factors of fair use without dodging the ones that go a bit against you.)

I mean, it kind of makes sense that you would have to argue that a use is fair. This is a rhetoric class, isn’t it?

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