Last week a video went viral with the kind of people who share Upworthy on their Facebook: it was girls making a Rube Goldberg machine out of their unwanted princess-y toys, set to a rewrite of the Beastie Boys' Girls with the gross lyrics changed to a girl power anthem. Everybody loved it! It was inspiring! Girls don't just want to play with dolls!
It was also a commercial for a toy company. In particular the commercial was selling GoldieBlox, a building toy aimed at girls. It wasn't a feel-good viral message video. It was an ad.
What happened next is oh so internet. GoldieBlox launched a suit against the Beastie Boys, calling them sexist. Their press release managed to convince the world that this was a countersuit, that the evil Beastie Boys had attacked the small company with an army of lawyers. Everybody got mad. Everybody thought the company should totally be able to use the song in their video. A lot of people seemed to not get that it was an ad (which, by the way, makes it one hundred times more effective as an ad).
The problem is that the Beastie Boys didn't sue. GoldieBlox sued first, in a defensive move after being contacted by the Beastie Boys' lawyers about the use of the song. See, the Beastie Boys have a policy - codified in Adam Yauch's will - against ever using their songs in commercials. Period.
Today the Beastie Boys issued a statement:
Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.
We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.
As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.
When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.
I'm not sure what's more irritating - the way the commercial is trying to hide behind fair use or the fact that GoldieBlox has successfully positioned themselves as the ones being attacked when they went to court first.
Here's the thing: if that video was made by some random people and was exactly the same, the Beastie Boys would never have sued. But it's not a PSA, it's a commercial. It is intended to sell toys. That's why it ends with a shot of the product, in classic advertisement fashion. What's the difference between GoldbieBlox using a Beastie Boys song in their ad and McDonald's using a John Lennon song without permission? Besides the fact that we all like what GoldieBlox's mission is - nothing.
There's also something nasty about GoldieBlox coming out swinging at the Beastie Boys as sexist. Girls is not a song that makes them proud. They have songs on their first two albums that they all but disown. But over the thirty years since License to Ill came out, the Beastie Boys grew and matured, and have become one of the wiser, kinder and more equality-minded pop groups going. Let's put it this way: I have a hard time believing third wave feminist firebrand Kathleen Hanna would be married to Adam Horovitz if he was still the same puerile jerk who recorded Girls.
Fair use is a concept that gets trickier and more complex in our digital, remix-oriented culture, but one thing remains the same: it's not fair use to use someone else's art in a commercial. And as inspiring as that GoldieBlox video is, it's a big old advertisement for a toy.