PopMatters is moving to WordPress in December. We will continue to publish on this site as we work on the move. We aim to make it a seamless experience for readers.


Goldieblox vs. the Beastie Boys: A Parable on Permissions

Monica Corton

When a song becomes forever connected with a product, particularly with the use of a parody lyric, it's deemed “baked” or “overused”.

Above: Press photo of Beastie Boys. Photographer unknown

Now that the Beastie Boys have gone on the offensive for the unlicensed and unauthorized use of their song “Girls”, written by Adam Horovitz and Rick Rubin, as used in the Goldieblox viral video campaign to feature their girls toy line... let’s try to unpack what actually happened and why songwriters and music publishers firmly believe that this was not a fair use.

The introduction to the fair use section of the Copyright Act states that “[T]he fair use of a copyrighted work * * * for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.”

Many siding with the argument that the Goldieblox viral video of “Girls” was a fair use were focused on the “comment and criticism” aspects, because this advertisement for toys was cloaked in a social justice message about girl empowerment. However, after all the excellent video footage showing the power and possibilities for girls, a big Goldieblox logo pops up on the screen in the last few seconds of the viral video.

This is apparently a trend in advertising. According to Roo Ciambriello in this Adweek article, it’s an advertising strategy now to “sell product by convincing your target market that you are more invested in contributing to emotionally charged, globally relevant women’s image issues [or, in Goldieblox’s case, “girl empowerment issues”] than you are in advertising your product.” A Pantene shampoo commercial does the same thing, but its social justice message is the role of women in the workplace and how they are judged differently from men.

Promo still from Goldieblox commercial

With this new trend of “social justice advertising”, the “purpose and character of the use” start to break down. If the real goal of the “Girls” viral video were truly about girl empowerment, why would they need the logo of Goldieblox in full screen at the end of the video? If there was no logo at the end of this video, then it would be a better argument for a fair use of “Girls”, but that is not how the viral video was presented. If Goldieblox was that socially concerned about girl’s ability to engineer products, why aren’t they giving their toys away for free?

Parody lyrics in commercials are not transformative. I know this to be true because parody lyrics are used in commercials all the time and I license them quite frequently. The use of parody lyrics in commercials en masse began in the early '80s when advertising agencies decided to shut down their jingle writing businesses and use popular music to help sell and brand products. Sometimes they used the song as originally recorded, but many times they change the lyrics to suit the advertisement. One of the oldest examples that I was able to find is a 1984 commercial for Joy Dish Washing Liquid.

However, there are dozens of parody lyric uses every year in the commercial realm. Here are but a few to represent the many:

"Addams Family Theme"/Ebates.com

"Da' Dip"/Zoopals

"Nobody but Me"/Little Caesars

"September"/Subway Restaurants

"Shake Your Booty"/Sensa

"Total Eclipse of the Heart"/Fiber One

As for the market harm (e.g., how this viral video use will affect future income for the song), beyond the fact that the Beastie Boys for years have never allowed their songs to be used in advertising, which is a kind of market harm, their future licensing uses in other types of synchronization uses were put in jeopardy by the use of “Girls” in the Goldieblox viral video.

When a music publisher licenses music for an advertisement, it licenses based on a specific period with no limit on the frequency of the uses during the term of the use. Therefore, advertisers usually saturate the market with time buys of the ad to get the most bang for the buck in the limited amount of time they have to use the composition in the ad.

In the case of Goldieblox, the “Girls” viral video was reaching a massive audience in a very short amount of time. There were over eight million viewings in the few weeks that the advertisement was on the Internet and those numbers most assuredly would have increased significantly due to the media blitz surrounding the infringement issue.

When a song becomes forever connected with a product, particularly with the use of a parody lyric, it diminishes a publisher’s capacity for licensing that work in television, motion pictures, videos and videogames because music supervisors feel that the song is “baked” or “overused” and that it would not be a fresh choice to utilize in other productions. This means the market harm is the actual advertising synchronization license fee that was not paid to the Beastie Boys, the potential loss of future income by being disregarded, overlooked, or rejected for future television, motion picture, video and videogame licenses and the fact that Goldieblox secured a Superbowl advertising spot via an Intuit contest using the “Girls” viral video as their contest submission piece.

An interesting footnote to this matter is that Debbie Sterling, President of Goldieblox who graduated from Stanford in 2005 and started Goldieblox in 2012, served as a brand strategy consultant for a wide variety of organizations including Microsoft and T-Mobile for the seven years in between her college graduation and starting her toy company. How could she not know about music licensing in the advertising sector with this kind of job experience? Wouldn’t she also know how to try to get around the law by claiming “fair use” in an alleged social justice based ad?

In addition, the law firm that represents her, Orrick Herrington & Sutcliffe conveniently slapped the declaratory judgment on the Beastie Boys immediately after it contacted Goldieblox to find out under what authority Goldieblox was using the song, “Girls". The judgment lists a litany of copyright holders related to the Beastie Boys including the original master recording, the publishers and the songwriters of “Girls” even though the original master was not used in the Goldieblox viral video. This would indicate Orrick Herrington & Sutcliffe was worried about the market harm in the master rights as well as the publishing when it came to claiming fair use.

The aggressiveness in filing a declaratory judgment before the Beastie Boys even considered filing a copyright infringement case and the speed at which the declaratory judgment was filed, which included every potential person or company that had a claim, seems very calculating, as if the law firm was looking for the fight over the “fair use” issue in the area of advertising and the controversy would provide the firm with even more marketing power. In fact, Goldieblox had used another unlicensed copyrighted song, “We Are the Champions” in a previous viral video campaign, but it wasn’t as popular as “Girls” and its use never reached the massive market appeal that the “Girls” viral video achieved in an extremely short amount of time.

What is Orrick Herrington & Sutcliffe? It's a global law firm with 25 offices in Asia, Europe and North America which boasts on the firm website the following: “In what is described as one of the most important copyright infringement battles in years, Orrick is defending DISH Network against claims brought by Fox Broadcasting and other major television networks on both U.S. coasts relating to DISH’s PrimeTime Anytime and AutoHop features on its innovative DVR system.” This case is also about circumventing creators’ rights, but in the realm of television distribution. Certainly, the idea that Goldieblox did not “know” that it needed a license seems hard to believe, considering Sterling’s business background and Orrick’s notoriety as a firm that focuses on copyright issues.

Although the Beastie Boys have settled their case with Goldieblox, I hope the issues surrounding it spark a dialogue, especially among technology and digital companies in the San Francisco area that seem to think copyright protection for their own intellectual property has a great value, but copyright protection for works of music is a big joke. We are not helping either industry’s businesses by constantly getting into legal battles over licensing when we all would be best served by building business relations and working together to foster productive businesses for our respective industries.

Monica Corton is Senior Executive Vice President of Creative Affairs and Licensing at Next Decade Entertainment, Inc., an independent music publishing company which she has been privileged to work at since 1991. Her responsibilities include signing new writers, negotiating, drafting and licensing all works published and administered by the company as well as overseeing the distribution of royalties. She has been a guest lecturer for the Association of Independent Music Publishers, the Copyright Society, the National Music Publishers Association, the Hartt School of Music, the International Intellectual Property Conference at Fordham Law School and the Cutting Edge Music Conference.

Please Donate to Help Save PopMatters

PopMatters have been informed by our current technology provider that we have until December to move off their service. We are moving to WordPress and a new host, but we really need your help to fund the move and further development.





Artemis Is the Latest Jazz Supergroup

A Blue Note supergroup happens to be made up of women, exclusively. Artemis is an inconsistent outing, but it dazzles just often enough.


Horrors in the Closet: A Closet Full of Monsters

A closet full of monsters is a scary place where "straight people" can safely negotiate and articulate their fascination and/or dread of "difference" in sexuality.


'Wildflowers & All the Rest' Is Tom Petty's Masterpiece

Wildflowers is a masterpiece because Tom Petty was a good enough songwriter by that point to communicate exactly what was on his mind in the most devastating way possible.


Jazz Composer Maria Schneider Takes on the "Data Lords" in Song

Grammy-winning jazz composer Maria Schneider released Data Lords partly as a reaction to her outrage that streaming music services are harvesting the data of listeners even as they pay musicians so little that creativity is at risk. She speaks with us about the project.


The 100 Best Albums of the 2000s: 100-81

PopMatters' best albums of the 2000s begin with a series of records that span epic metal, ornate indie folk, and a terrifying work of electronic music.


The Power of Restraint in Sophie Yanow, Paco Roca, and Elisa Macellari's New Graphic Novels

The magical quality that makes or breaks a graphic novel lies somewhere in that liminal space in which art and literature intersect.


'People of the City' Is an Unrelenting Critique of Colonial Ideology and Praxis

Cyprian Ekwensi's People of the City is a vivid tale of class struggle and identity reclamation in the shadows of colonialism's reign.


1979's 'This Heat' Remains a Lodestone for Avant-Rock Adventure

On their self-titled debut, available for the first time on digital formats, This Heat delivered an all-time classic stitched together from several years of experiments.


'The Edge of Democracy' and Parallels of Political Crises

Academy Award-nominated documentary The Edge of Democracy, now streaming on Netflix, lays bare the political parallels of the rise of Bolsonaro's Brazil with Trump's America.


The Pogues' 'The BBC Sessions 1984-1986' Honors Working-Class Heroes

The Pogues' BBC Sessions 1984-1986 is a welcome chapter in the musical story of these working-class heroes, who reminded listeners of the beauty and dignity of the strong, sooty backs upon which our industrialized world was built.


Mary Halvorson Creates Cacophony to Aestheticize on 'Artlessly Falling'

Mary Halvorson's Artlessly Falling is a challenging album with tracks comprised of improvisational fragments more than based on compositional theory. Halvorson uses the various elements to aestheticize the confusing world around her.


15 Overlooked and Underrated Albums of the 1990s

With every "Best of the '90s" retrospective comes a predictable list of entries. Here are 15 albums that are often overlooked as worthy of placing in these lists, and are too often underrated as some of the best records from the decade.


'A Peculiar Indifference' Takes on Violence in Black America

Pulitzer Prize finalist Elliott Currie's scrupulous investigation of the impacts of violence on Black Americans, A Peculiar Indifference, shows the damaging effect of widespread suffering and identifies an achievable solution.


20 Songs From the 1990s That Time Forgot

Rather than listening to Spotify's latest playlist, give the tunes from this reminiscence of lost '90s singles a spin.


Delightful 'Miss Pettigrew Lives for a Day' Is Good Escapism

Now streaming on Amazon Prime, Bharat Nalluri's 2008 romantic comedy, Miss Pettigrew Lives for a Day, provides pleasant respite in these times of doom and gloom.


The 10 Best Horror Movie Remakes

The horror genre has produced some remake junk. In the case of these ten treats, the update delivers something definitive.


Flirting with Demons at Home, or, When TV Movies Were Evil

Just in time for Halloween, a new Blu-ray from Kino Lorber presents sparkling 2K digital restorations of TV movies that have been missing for decades: Fear No Evil (1969) and its sequel, Ritual of Evil (1970).


Magick Mountain Are Having a Party But Is the Audience Invited?

Garage rockers Magick Mountain debut with Weird Feelings, an album big on fuzz but light on hooks.

Collapse Expand Reviews

Collapse Expand Features

PM Picks
Collapse Expand Pm Picks

© 1999-2020 PopMatters.com. All rights reserved.
PopMatters is wholly independent, women-owned and operated.