Tuesday, November 26, 2013

You gotta fight for the right to be transformative

Watch this.

What's that, Brooklyn Dolly Llama? You're saying that this is an obvious rip-off of the Beastie Boys?

But wait a minute. Weird Frankie over here is saying that this song is a direct commentary on, and rejection of, the original song.

Did you say it's for commercial use, Brooklyn Dolly Llama?

Well, the company that created the video above, Goldieblox, is going to get this settled, one way or the other, according to the Hollywood Reporter.

Goldieblox is now going to a California federal court to get declaratory relief that the video is not a copyright infringement.

In my layman's understanding, Goldieblox is engaging in a pre-emptive strike, before the Beastie Boys sue Goldieblox (although it's unclear whether the Beastie Boys actually were going to SUE Goldieblox).

Once it gets to court, the case should be cut and dry, right? Well, in a piece entitled Goldieblox and the Three MCs, Andy Baio notes that it may not be all that cut and dry.

Courts frequently reverse decisions on appeal, only to have appeals overturned by higher courts....If even judges can't agree on fair use, what chance do the rest of us have of understanding it?

One thing that struck me when reading Baio's piece is his use of the word "transformative," especially in regard to Leslie Nielsen's movie advertisement and 2 Live Crew's song. This relates to the first of four factors to be evaluated when "fair use" is claimed. These four factors are briefly listed on copyright.gov (which, in a delicious irony, is not itself protected by copyright):

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work

(This fourth factor has an interesting ramification. What if a parody - say, Goldieblox's parody of "Girls" - is so effective that music buyers decided that the Beastie Boys' original is sexist, odious, and not worthy of purchase?)

Both the Nielsen and the 2 Live Crew cases, and many, many others, were also discussed by Stanford University on a page that listed a number of fair use cases, accompanied by the final court determination. Two examples, one of which includes a...um, "novel" attempt to use the t-word:

Fair use. A person running for political office used 15 seconds of his opponent’s campaign song in a political ad. Important factors: A small portion of the song was used and the purpose was for purposes of political debate....

Not a fair use. A defendant in a music file sharing case could not claim a fair use defense since he had failed to provide evidence that his copying of music files involved any transformative use (an essential element in proving fair use).

In the course of writing this post, I had occasion to revisit a post that I had written in 2004 about the JibJab-Woody Guthrie thingie - a post that primarily consists of quotes from other publications.

Hey, I had only been blogging for less than a year at that time....

P.S. For more information, see the Beastie Boys message board thread on this topic. The "boys" are so old, the URL includes "bbs." For a slightly more modern presentation, see Goldieblox's Facebook page. Oh, and if you search the WHOIS database at godaddy.com, you'll find that "goldiblox.com" (no "e") is registered to someone other than Goldieblox.

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