Opinion

Felix Salmon

GoldieBlox, fair use, and the cult of disruption

By Felix Salmon
November 26, 2013

If you google “disrupt the pink aisle”, you’ll get 36,800 results, all of which concern a San Francisco-based toy company named GoldieBlox. The company first came to public attention in September of last year, when it launched a highly-successful Kickstarter campaign which ultimately raised $285,881. Like all successful Kickstarter campaigns, there was a viral video; this one featured a highly-photogenic CEO called Debbie, a recent graduate of — you probably don’t need me to tell you this — Stanford University. And yes, before the Kickstarter campaign, there was “a seed round from friends, family and angel investors”. When the viral video kept on generating pre-orders even after the Kickstarter campaign ended, GoldieBlox looked like a classic Silicon Valley startup: young, exciting, fast-growing, and — of course — disruptive.

Not wanting to mess with a proven formula, GoldieBlox kept on producing those viral videos: “GoldieBlox Breaks into Toys R Us” was based on Queen’s “We Are The Champions”, and got over a million views. But that was nothing compared to their latest video, uploaded only a week ago, and already well on its way to getting ten times that figure. This one was based on an early Beastie Boys song, “Girls”, and deliciously subverted it to turn it into an empowering anthem.

Under what Paul Carr has diagnosed as the rules of the Cult of Disruption, GoldieBlox neither sought nor received permission to create these videos: it never licensed the music it used from the artists who wrote it. That wouldn’t be the Silicon Valley way. First you make your own rules — and then, if anybody tries to slap you down, you don’t apologize, you fight. For your right. To parody.

In a complete inversion of what you might expect to happen in this case, it is GoldieBlox which is suing the Beastie Boys. And they’re doing so in the most aggressive way possible. There’s no respect, here, for the merits of the song which has helped their video go massively viral and which is surely helping to sell a huge number of toys. Instead, there’s just sneering antagonism:

In the lyrics of the Beastie Boys’ song entitled Girls, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male subjects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. They are also shown engaging in activities far beyond what the Beastie Boys song would permit.

This is faux-naïveté at its worst, deliberately ignoring the fact that Girls, the original song, is itself a parody of machismo rap. The complaint is also look-at-me move, positively daring the Beasties to rise to the bait and enjoin the fight. Which the Beasties, in turn, are trying very hard not to do. In their letter to GoldieBlox, the Beasties make three simple points. They support the creativity of the video, and its message; they’re the defendants in this suit, rather than the people suing anybody; and, most importantly, they have a long-standing policy that no Beastie Boys songs shall ever be used in commercial advertisements. (They don’t mention, although they could, that this last was actually an explicit dying wish of Adam Yauch, a/k/a MCA, and an integral part of his will.)

Given the speed with which the GoldieBlox complaint appeared, indeed, it’s reasonable to assume that they had it in their back pocket all along, ready to whip out the minute anybody from the Beastie Boys, or their record label, so much as inquired about what was going on. The strategy here is to maximize ill-will: don’t ask permission, make no attempt to negotiate in good faith, antagonize the other party as much as possible.

This way, at least, the battle lines get drawn pretty clearly. The jurisprudential analysis comes out, defending GoldieBlox and its right to use the Beasties’ song as parody. After all, fair use is a protection under the law, which means that if it applies, then it doesn’t matter what the Beasties think, or want: GoldieBlox can do anything it likes. On the other hand, in the key precedent for such issues, Campbell vs Acuff-Rose Music, Justice Souter explicitly said that “the use of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence” under the law than “the sale of a parody for its own sake”.

This is a distinction the Beasties intuitively understand. After all, this version of Girls has been viewed more than 3 million times on YouTube, without so much as a peep from the Beasties. And if you simply lop off the last few seconds of the GoldieBlox version — the bit where they shoehorn in the GoldieBlox branding — then that, too, would surely have been fine. If all GoldieBlox wanted to do was get out a viral message about empowering girls, they could easily have done that without gratuitously antagonizing the Beastie Boys, or putting the Beasties in their current impossible situation.

Instead, however, GoldieBlox did exactly what you’d expect an entitled and well-lawyered Silicon Valley startup to do, which is pick a fight. It’s the way of the Valley — you can’t be winning unless some household-name dinosaur is losing. (The Beasties are actually the second big name to find themselves in the GoldieBlox crosshairs; the first was Toys R Us.) The real target of the GoldieBlox lawsuit, I’m quite sure, is not the Beastie Boys. Instead, it’s the set of investors who are currently being pitched to put money into a fast-growing, Stanford-incubated, web-native, viral, aggressive, disruptive company with massive room for future growth — a company which isn’t afraid to pick fights with any big name you care to mention.

Because in Silicon Valley, people will always prefer to invest in that kind of company, rather than in a toy company whose toys, in truth, aren’t actually very good.

Update: Turns out that GoldieBlox CEO Debbie Sterling was making deliberately-controversial viral videos long before she conceived of GoldieBlox. I’m not sure what to say about this, except that if you played any part in making it, you should never, ever get the benefit of the doubt.

Update 2: And here is Debbie’s blog from when she was in India, it has to be read to be believed. To think that this woman is trying to claim the moral high ground over Adam Yauch.

Update 3: GoldieBlox has now removed the video, saying that it does want to respect the Beasties’ wishes after all.

Comments
41 comments so far | RSS Comments RSS

GoldieBlox basically danced all over Adam’s grave, spit on his grave stone, then mocked him.

Posted by GRRR | Report as abusive
 

Oh really? So they’re not very good toys… tell that to my daughter who is happily playing with her set right now. Or maybe you just haven’t ever despaired as you discover that even chocolate Kinder eggs are now gendered into ‘fashion dolls’ for girls and engineering toys for boys. Test the toys with real girls before you pronounce on their quality.

And as for ‘entitlement’ is what you really mean that the girls running this company should just stay quiet and wait to be sued? Or that you’d support them if the CEO didn’t have an engineering degree from Stanford (which really seems to annoy Felix Salmon)? They gained investment from kickstarter because ordinary people (not valley investors) understood that Goldiblox was doing something different and brave, and which our world desperately needs.

Posted by helenislovely | Report as abusive
 

Ok buuuut…isn’t their version of the Beastie Boys song protected under parody?

Posted by Dubduck | Report as abusive
 

Ok buuuut….isn’t their version of the song protected under parody?

Posted by Dubduck | Report as abusive
 

This is a shame. As a female engineer, I was really excited about this ad. Now after reading this, I am disappointed by the behavior of Goldieblox. If they had the ingenuity that their advertisement suggests then I’m sure they could have gotten their product out into the market without blatantly antagonizing the Beastie Boys.

Posted by michelle619 | Report as abusive
 

Alternate title: The Beastly Beauty vs. the Beautiful Beasties

Posted by RRWagner | Report as abusive
 

Great analysis with deft insight into the memes and schemes of Silicon Valley startup culture. In honor of Yauch / MCA a few lines from “Sure Shot.”

I want to say a little something that’s long overdue / The disrespect to women has to got to be through / To all the mothers and sisters and the wives and friends / I want to offer my love and respect till the end

Posted by mlstotts | Report as abusive
 

Fair use is BULLSHIT. It’s something that, if you have the money to argue for it, it can be yours! I actually make music and had a brief sample of an artist’s music, about 20 seconds, as the outro of a song and placed as an homage to the original. My 44+ minute album got taken down from YT, even though it fit the qualifications of Fair Use. I tried to fight it, but quickly realized that unless I’m willing to shell out money for a lawyer, there’s no point. Ironically, fair use is most needed for those who don’t have the money to fight these sorts of things.

But as I’ve learned, those in power get to determine what’s art and what’s not. It’s such bullshit these guys can straight-up use BB’s song and counter-sue and claim fair use, while I’m actually making music that I am NOT selling or making any sort of profit on, but I can’t even post my album on YouTube. What’s ultimately ironic is that the music I was sampling wouldn’t be in existence if the same rules had applied to him, because said music is based on unauthorized sampling!!

Fuck GoldieBlox and fuck anyone trying to BUY fair use and DICTATE when it can or cannot be used — HINT: if you have the money to defend it, it’s yours!

Posted by metajd | Report as abusive
 

Fair use is BULLSHIT. It’s something that, if you have the money to argue for it, it can be yours! I actually make music and had a brief sample of an artist’s music, about 20 seconds, as the outro of a song and placed as an homage to the original. My 44+ minute album got taken down from YT, even though it fit the qualifications of Fair Use. I tried to fight it, but quickly realized that unless I’m willing to shell out money for a lawyer, there’s no point. Ironically, fair use is most needed for those who don’t have the money to fight these sorts of things.

But as I’ve learned, those in power get to determine what’s art and what’s not. It’s such bullshit these guys can straight-up use BB’s song and counter-sue and claim fair use, while I’m actually making music that I am NOT selling or making any sort of profit on, but I can’t even post my album on YouTube. What’s ultimately ironic is that the music I was sampling wouldn’t be in existence if the same rules had applied to him, because said music is based on unauthorized sampling!!

Fuck GoldieBlox and fuck anyone trying to BUY fair use and DICTATE when it can or cannot be used — HINT: if you have the money to defend it, it’s yours!

Posted by metajd | Report as abusive
 

This is called getting “Stanfordized” in the ass ..

Posted by Woltmann | Report as abusive
 

The maddening thing about the GoldieBlox ad is that it the toy they are selling is the same as the princess pink toys they are denouncing.

From their website “Goldie’s friends Ruby and Katinka compete in a princess pageant with the hopes of riding in the town parade.”

That doesn’t sound like they are empowering girls with that story line.

Posted by gilsan | Report as abusive
 

Dubduck — Parody is usually protected under fair use; advertising usually isn’t. This ad seems to fall somewhere in the middle, though Rachel Sklar argues on Medium (https://medium.com/ladybits-on-medium/b c6521e3cdd4) that it probably is protected.

However, there’s nothing contradictory about arguing that GoldieBlox has a legal right to use the song, but that the company should have gotten permission anyway, as a courtesy to the artists. (Weird Al Yankovic makes a point of always getting permission from the original artists before recording parodies even though he doesn’t actually need it.)

Posted by jlansner | Report as abusive
 

Holy snap… this is why everyone laughs at feminism.

Posted by AmandaBankai | Report as abusive
 

@helenislovely: So you’d be OK with someone stealing your work to promote their own product?
And…Goldiblox is doing something ‘brave’. Making a toy is your definition of brave?

Posted by bertibus | Report as abusive
 

Nailed it.

GoldieBlox sure won’t be shattering any conventions if the lesson for girls is that you get what you want by yanking it away from someone else.

Posted by JennyNH | Report as abusive
 

@helenislovely – They didn’t have to stay quiet and be sued. All they had to do was engage in a dialogue with the BB. The Beastie Boys showed no inclination to SUE them. They just wanted to open a dialogue, and possibly resolve their differences WITHOUT lawyers.

Ordinary people? They have plenty of non-Kickstarter investors, so it’s not like they weren’t looking for that too. Just like any other company on Kickstarter.

Posted by RobbieS49 | Report as abusive
 

That goat video.
*shakes head*

Posted by thesmu | Report as abusive
 

Felix, are you sure in your comment that ‘Girls’, the original song, is itself “a parody of machismo rap”?

My understanding from statements and interviews that The Beastie Boys made after the single of ‘Girls’ was released in 1987 was that they weren’t all that enamored of this track, and it’s one that has rarely received any attention from them in concerts for the past thirty years.

Posted by lauradeen | Report as abusive
 

Stanford Law is the home of some notable anti-copyright trolls. In addition to the home of several silicon valley executives, many who enable and benefit greatly from the erosion of copyright laws.

Posted by wonky1 | Report as abusive
 

I don’t understand what prevents girls from playing with Legos. Or Erector Sets. Or Tinkertoys. Honestly, this story pushes all my Bad Feminist buttons. She starts with a phony victim narrative that girls have no toys that challenge their imagination, pompously sets herself up as a crusader to change that horrible non-existent problem, displays incredible entitlement in her complete disregard for morality, not to mention the irony implicit in the fact that she’s apparently not a very good engineer herself and would rather be in the toy-selling business. And just to add the final extra layer of irony, how exactly does she market this product to girls? By taking a rather poor toy and “girlifying” it with all the stereotypes she was complaining about in the first place!

Posted by J_Brisby | Report as abusive
 

@helenislovely – If the ‘girls’ are so creative, is it not possible for them to make their toy ad without stealing someones work? Nobody (especially college graduates) should expect to be able to reap commercial gain from someone elses work. I’m pretty sure they would have discussed plagiarism in school. You can get kicked out for that.

Posted by spottie | Report as abusive
 

im guessing he apologised for it being so easily misinterpretable

Posted by expectationlost | Report as abusive
 

Felix, your link to the “I Want a Goat” video in the update goes to a version that’s now been privatized. Here’s a link to another copy that remains publicly-accessible, at least for the moment:
http://www.dailymotion.com/video/xb6mty_ i-want-a-goat-i-m-on-a-boat-spoof-f_peop le

Posted by darwin1 | Report as abusive
 

lauradeen hit the nail square on the head here — calling “Girls” a “parody of machismo rap” is a huge stretch… Seems much more likely that they made that song when they were young punk idiots trying to become rap stars by doing what rap stars do.

Posted by rwwl | Report as abusive
 

Hmmm, any idea of where that last video in the update went? It’s now marked private and not able to be seen by the general public.

Posted by Johninmi | Report as abusive
 

The youtube video linked in the Update section has now been marked private. Can you summarize what it was for those of us who did not see it before it was hidden?

Posted by m2ke | Report as abusive
 

Ah, the usual sillicon valley cheapskate entitled behavior. Creating an advertisement and hiding behind the idea of a ‘parody’ and ‘fair use’ to make a profit. How pathetic. Yes, empowering girls and creating engineering-oriented toys is great. But profiting from other peoples work without their permission and compensation is frankly disgusting.

Posted by dobbiedada | Report as abusive
 

Ah, the usual sillicon valley cheapskate entitled behavior. Creating an advertisement and hiding behind the idea of a ‘parody’ and ‘fair use’ to make a profit. How pathetic. Yes, empowering girls and creating engineering-oriented toys is great. But profiting from other peoples work without their permission and compensation is frankly disgusting.

Posted by dobbiedada | Report as abusive
 

I would expect to see a rash of parodies used in ads if GoldieBlox prevails, which is why I think they’ll ultimately lose. Can’t license a song by The Beatles? Don’t worry, you can still get a familiar tune into an ad by creating a parody of the lyrics. It seems like Souter recognized this concern in the quote by Felix, and that, say, an “All You Need is Gloves” song in an isotoner ad wouldn’t qualify as parody fair use in his mind. And I don’t see how what GoldieBlox has done here is that different from that hypothetical.

Posted by realist50 | Report as abusive
 

Felix, the video you reference in the update shows up as “private” on youtube – I surmise it was blocked after your post. Can you give us a sense of what it was?

Posted by anduvo | Report as abusive
 

I wish they’d asked permission because of the controversy this has stirred up, BUT – parody does count as fair use and therefore not as plagiarism. The argument – and it’s a fair one to have – is to how you define the division between advertising and parody in this particular video. It is not the same as stealing and the guidance – quoted by Salmon – is that the law will be ‘less indulgent’ which is not the same as saying it’s prohibited.
As for whether making a toy like this is brave, I think you’re being disingenuous. All major toy companies today – including lego – invest millions of dollars in creating gendered toys. Now I wish they didn’t, but given the reality of that world, Goldiblox is trying to create a toy that still appeals to the senses of little girls who are constantly sent messages about ‘femininity’ but that also has a strong and empowering message. IN other words, they are saying, in order to play with engineering toys you don’t have to identify as a ‘tomboy’, but you can be an engineer as well as a pageant princess; a doctor as well as a beautician etc. I get that this is not a simple argument, but there it is.

Posted by helenislovely | Report as abusive
 

Wonder where Intuit is on all of this. Goldieblox may get a free Super Bowl commercial sponsored by them and I am betting they have copy right protection for most of their product.

Posted by JMM57 | Report as abusive
 

http://socialtimes.com/photojournalist-w ins-1-2-million-twitter-copyright-case_b 137887

morel just won over a million for copyright infringement
Beastie Boys’ should do the same, contact morel’s legal team

Posted by fede_sa | Report as abusive
 
 

So this is almost too close of a parallel to ignore, albeit a funny coincidence. Coincidence trumps conspiracy every time, it’s good to laugh!

GoldieBlox is a play on Goldielocks. In the story of Goldielocks and the Three Bears, the Bears are out minding their business, Goldilocks goes into their house, eats their stuff and takes a nap. Then the Bears come home, have a “WTF?” moment, and Goldilocks runs off – even though the Bears could have like seriously mauled her, because Bears. She got busted for her trespassing and general, well, rude behavior, and the Bears kind of wonder what they did to deserve that kind of treatment.

Anyway, very much appreciate your column and counter-balance of perspective to the early deluge of PR blitz. It’s in nobody’s interest to stifle girls and women in STEM pursuits. Yet I see rich ignorant people showing off their toddlers playing with iPads, while poor people just pile up a stack of gender-neutral Legos.

Posted by 6StringMerc | Report as abusive
 

Or, Goldieblox got caught up in the viral internet mindset, as many video creators, bloggers and others have done — including plenty of well-lawyered companies — and didn’t really think through the ramifications. But nice job of completely vilifying the company and making sweeping assumptions about its motives.

You can decide that you think “Girls” was satire, and that Goldieblox and its oh-so-tasteless CEO crassly and deliberately stole the song’s notoriety to make a big ca$$$h grab. Sure. Alternatively, you could say there is nothing whatsoever in the song that suggests it is satire, that any such claims made by the group years later are simply ex post facto justifications of older and wiser people who were a little embarrassed about the song, and that Goldieblox appropriated the song simply as a commentary on both it and the culture surrounding girls’ toys and gender roles in general.

And of course, no mention of the Beasties’ own history of sampling without permission — for money, even! — and the lawsuits that followed, but I realize that didn’t fit your narrative. My point being that when you really start digging into appropriation and viral culture, it becomes very difficult to say “up until this point, appropriation is cool, and after that it’s stealing.” But that’s why we have courts. You might decide that music released on an album is art, and music created for an advertisement is crass commercialism, but they are both designed to make money.

Posted by ikthog | Report as abusive
 

Everyone should read the blog that Debbie wrote from India (referenced by Mr. Salmon above in update #2). I cringed reading it. The blog is just embarrassing. You’re shallow, Debbie. Thanks, I will stick with Lego Friends and Rainbow Loom to engage my girls’ minds.

Posted by reader88 | Report as abusive
 

The blog is now restricted access. Does someone have a cached version of offending posts?

Posted by primedprimate | Report as abusive
 

My wife and I own an educational toy store, and after a lot of thought, and for many reasons (not just the Beasties Debacle) decided that Goldie Blox is not a company that deserves our dollars or our shelf space. Our current stock sold out just about the time the video broke, and shortly thereafter we cancelled our next order.

They are playing everyone, and I’m gratified to see by some of the comments here that not everyone things the Emperor’s New Clothes are quite so spiffy.

Posted by EricVB | Report as abusive
 

The fair use argument on the Beastie Boys parody really could go either way (especially in the Ninth Circuit)… though probably the commercial purpose of the work will outweigh its transformative nature as a parody.

I’m confused, however, about one of the updates… what is so terrible about the “I want a goat” video? It appears to be a simple, non-commercial parody to promote people donating to a now-defunct charity that provides goats to families in india as a stepping stone out of hunger and poverty (similar to hiefer.org). I suppose you could be offended if you see it as making light of poverty (by using a silly song), but I think it was just intended to be funny so as to draw more attention to a charitable cause in a lighthearted way (rather than a Sarah Mclachlan ASPCA “turn off the TV and kill yourself” kind of way). I don’t get the outrage…

Posted by KitschyD | Report as abusive
 

Gilson, above, makes a misrepresentation by only quoting the first sentence from one of the products on the GoldieBlox website: “In this much-anticipated sequel, Goldie’s friends Ruby and Katinka compete in a princess pageant with the hopes of riding in the town parade.”

Yeah that does sound hypocritical as Gilson suggests. Except when you read the next sentence and put it in context it makes a lot more sense: “When Katinka loses the crown, Ruby and Goldie build something great together, teaching their friends that creativity and friendship are more important than any pageant.”

So obviously Goldieblox is not promoting princess pageant culture but critiquing it.

As for the song issue, it’s kind of a tough one. As a musician who wouldn’t want works to be used in advertising, I think the creator correctly has certain rights over its use. And the Beastie Boys are cool guys, so why target them? There are loads of way more genuinely sexist male acts who could be parodied.

BUT, it’s also not a great song, by the band’s own admission, with embarrassing misogynistic lyrics. In that sense it deserves to be made fun of and turned upside down.

After careful consideration, I would have to side with the Boys. It may be a crap song, but it’s still their crap song and an advertisement is an advertisement is an advertisement.

What I really don’t get though is how people on this thread go from discussing this issue to vilifying “feminists”.

Get a grip! The issue of whether or not Goldieblox’s appropriation of “Girls” constitutes Fair Use, under the law, doesn’t actually have anything whatsoever to do with feminism!

Posted by Dianimal | Report as abusive
 

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