Producers and songwriters should be aware that in the Temporary Autonomous Zone of Northern California (home of the class action award payoffs to the EFF, Berkman Center and other places where copyright haters thrive), the new new thing appears to be suing record producers and songwriters. Rick Rubin in particular.
Last week Goldieblox made a big splash on the internet with their Rube Goldberg style gizmo in their commercial which depicted bored girls who decided to build a “Der lauf der dinge”, or a HONDA “Cog” style machine out of ordinary household things, set to the tune of Beastie Boys “Girls”, but with new lyrics. The creative engineer who built the contraption in OK Go’s “This too shall pass”, Brett Doar, spent 2 1/2 weeks building the gadget in the Goldieblox ad.
Goldieblox isn’t just a pink board with holes in it, some spools and some ribbon. There’s a story too, as little girls apparently like “narrative play”, and follow along on an adventure with the character helping her along the way by solving little engineering problems with these spools and ribbons to get to the next step. A bit like a book combined with the old board game mouse trap that fascinated me as a wee lass.
Upworthy sent the ad to viraldom, and Goldiblox are hoping to win a slot advertising during the super bowl with this advert. On youtube the ad, titled “GoldieBlox, Rube Goldberg, & Beastie Boys “Princess Machine”‘, has already reached seven million views….
It’s well known that Adam Yauch’s will says no to Beastie Boys songs in advertising, [although Adam Yauch isn’t a writer of “Girls,” but the ad still invokes the recording, so maybe] so there’s disrespecting the last wishes of a dead guy on top of infringing someone elses art for the sake of shilling some yellow spools and pink ribbon. This dream product that went from brunch-idea, to kickstart-funded after a friend at Upworthy seeded it, is now one of four finalists in the running for a free spot at the super bowl. If Goldieblox’ win that, they could easily become girl-toy of the year 2014. Welcome to the future, where you get money for nothing and music for free.
So in a world where scanning millions of books without permission is fair use–Mountain View, California to be precise–it’s only natural that using music to advertise a product without permission would also be fair use, too.
Co-writers and producers take note–the Goldieblox juggernaut has resulted in filing a declaratory relief action that named Rick Rubin, the co-writer of the original song and the producer of the original recording. This is the new world courtesy of the Web 2.0 crowd, where advertising is a way of life.
And it’s really just about the money.
In the world of the “old boss” (i.e., music publishers), one of the easiest gives in an writer contract negotiation was that the publisher couldn’t license a commercial without the writer’s consent. Why? Because licensing a song for a commercial is really an afterthought in the signing decision–it’s a nice to have, but it’s not a must get. What’s important in the signing decision is whether this writer is going to write compelling songs that can change your life, not whether the writer can write songs to sell soap. Or Goldieblox.
It comes down to this: Why would you want to force a writer to participate in a commercial transaction they didn’t want to be associated with? That desire to impose your will on someone against their wishes is not only downright sadistic, it’s not good business.
You know who never, never understands that some songwriters don’t give a damn about commercials? People who make commercials. They often don’t understand that “no” means “no,” just like it does anywhere else. And Web 2.0 has tripled the population of these people and made them the lifeblood of the Internet. They want to Hoover up everything in sight–songs, your Facebook photos, whatever–and think they have a right to because they are on a mission from God–or at least the Singularity.
Here’s an interesting twist, though. The commercial production house that created the Goldiblox video is very impressed with themselves, which is not unusual But as Adland noted, what is unusual is that they just skipped over the part where they respect other people’s rights. (Mission from God, perhaps?)
Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune, “Girls” would add narrative drive as we assembled the piece, and our resident geniuses at Pico Sound would augment the action with chain-reactive sound design.
Clearly nobody was thinking about a parody of the Beastie Boys. They were thinking about what commercial directors always think about–selling the product. Because it’s…you know…a commercial. In fact, there’s no mention of a parody in the entire narrative by the people who created the commercial. Want to guess why? Maybe because they never intended it to be a parody until they talked to the lawyers?
But in the world of the “new boss“, Goldieblox not only want to take your song to sell their stuff, they also will have their white shoe lawyers sue you if you get in the way. (See David Lowery’s classic “Meet the New Boss, Worse Than the Old Boss“.) Judging by the number of lawyers on the complaint, Goldieblox won’t even try to pay for a commercial license for the song, but they will pay what is probably a combined billing rate approaching $2,000 an hour. And the fact that the song wasn’t available for a commercial license probably explains a lot. You have to ask yourself why would Goldieblox rather sue songwriters and producers over an obscure Beastie Boys song rather than write their own?
Let’s be clear–these Goldieblox people really, really, really want that Superbowl slot and they’ll do anything to get it. And they don’t intend to ask permission (because that’s just not how they roll in Silicon Valley) and they definitely don’t intend to respect the wishes of the dead. Because the dead are…you know…like, old.
Or as someone else once put it more eloquently, the use “has no critical bearing on the substance or style of the original composition [not to mention being more of a rip off of Ke$ha’s “Boys” than the Beasties in my view], which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh….”
You know, like using “Beastie Boys” in the title of your YouTube video to get more views.
Maybe you two can teach the kids some “new boss” lessons.
Update: An excellent post by Mary Elizabeth Williams in Salon sums it up well:
The Beastie Boys spent a better part of their formidable career making it very clear to even the most casual observer that they were not, in fact, a pack of infantile misogynists. But even if they had been, that wouldn’t give anybody – even a company with a positive, girl-powery message – the right to steal from them. “Girls” is the Beastie Boys’ song, and they shouldn’t be expected to hand it over to anybody in some bizarre legal stab at public shaming. That’s not the inventive, original thinking that GoldieBlox appears to espouse. Instead of hiding behind the thoroughly lame excuse that “The song was sexist, ergo we can take it to sell our toys,” GoldieBlox could instead put on its big girls pants and make something awesome now with its creative talent. The company could instead prove that when challenged, it’s crafty. And that’s just my type.
And another from Upstart, a blog with business advice for startups:
Should GoldieBlox have simply replied to the Boys’ letter in hopes of settling the dispute away from the public eye? [Yes, unless–as it appears–the plan all along was to get sued.]
Or was it smart to expose the Boys’ threat, letting the general public believe the men stand by the lyrics in the original song (which they’ve said openly in the past, were a joke), and ignoring the fact that they might just want to explore their rights to their own song?
Neither party is revealing many details about how it all went down, but we’ll anxiously await the judge’s decision on the matter. And in the meantime, we hope startups think long and hard about the time to take the offense and when it might be best to sit back and play defense.