Goldieblox's Argument is Juuuuuust Right

I'm sure you've heard that Goldieblox filed a declaratory judgment suit against the Beastie Boys because the Beasties sent them a letter in which they assert that this video infringes their copyright on their song "Girls":



You've also probably read various ill-informed articles about this case. Without calling any particular authors to task I'd like to make a few points as a neutral observer.

First, many people have said things like "It's bullshit that Goldieblox sued the Beasties when it's Goldieblox that's doing the copying." In fact, the Beastie Boys had the same gripe in their open letter to Goldieblox.

Declaratory judgment actions are perfectly legitimate and they happen in the IP space all the time. Like when Robin Thicke filed a declaratory judgment against Marvin Gaye's estate. People do this because they have been threatened with a lawsuit and they don't want to be sued in an unfavorable jurisdiction. If you want to learn more about the standard, read this.

Second, many people think that the Beastie Boys should win because they don't license their music for use in advertisements based on a request in MCA's will. While I respect that position, MCA's will doesn't override our copyright laws.

About 20 years ago, Roy Orbison sued Luther Campbell of 2 Live Crew alleging that Campbell's song "Pretty Woman" infringed Orbison's copyright to his song "Oh, Pretty Woman". Here's the 2 Live Crew song:



And the Orbison song:



You can clearly hear strands of Orbison's music in Campbell's song, and Campbell definitely built his lyrics around Orbison's.

The case went all the way to the Supreme Court and Campbell won. The Supreme Court said this was a parody of Orbison's song and thus constituted "fair use" under 17 USC 107, even though Campbell's lyrics were offensive.

The Beastie Boys' case is almost perfectly analogous. In fact, unlike Campbell's parody, Goldieblox took the Beastie's misogynistic song and turned it into something feminist. This looks like fair use to me under the Orbison/Campbell case.

Finally, if anyone should be pissed off about all of this it's Bo Diddley. But if he went after the Beasties I'm sure they would claim fair use ... otherwise they'd be in a world of financial hurt for their uncleared samples on Licensed to Ill alone.

The easiest way for this situation to resolve itself is for the court to find a lack of standing in the declaratory judgment suit (which may be easy to do depending on the content of the Beastie Boys' first letter to Goldieblox). Then Goldieblox should pull the video and make a donation in MCA's name to a charity that helps girls. The amount should be a value both sides agree to, probably based on some form of statutory damages.

You can call me Solomon from now on.