By Carlos F. Romero, Esq.
Last week’s Hollywood Reporter released a good article breaking down the lyrical similarities in a copyright dispute between Goldieblox and the Beastie Boys over the song “Girls.” It raises interesting questions about fair use in copyright law and what uses of song lyrics are okay to appropriate into other works.
Goldiebox released a viral parody video on November 18 that showed young girls singing alternative lyrics to the song “Girls” with the goal of getting young girls interested in pursuing scientific careers. The lyric edits, from the Hollywood Reporter article:
In the original song, the Beasties sang: “Girls — to do the dishes/ Girls — to clean up my room/ Girls — to do the laundry/ Girls — and in the bathroom/ Girls, that’s all I really want is girls.”
The video replaces those lyrics with: “Girls — to build the spaceship/ Girls — to code the new app/ Girls — to grow up knowing/ That they can engineer that/ Girls. That’s all we really need is girls.”
The Beastie Boys released their lawyers and initiated a lawsuit in California federal accusing GoldieBox of copyright infringement as an unauthorized use of the copyright for the song and that it would significantly impact the the Beastie Boys existing intellectual property.
Do they have a case?
To start, it should be clear that this is not a trademark issue. Movie, book, and song titles are not granted protection under Federal Trademark law unless they are part of an overall brand of goods or services. This is an exception to the standard rule that a mark is anything used to identify the source of origin of a good or service, because the law did not want to not create a million little monopolies for every existing song title or book title and prevent the use of that title ever again on the marketplace. For example, “Harry Potter and Chamber of Secrets” cannot specifically be trademarked, but “Harry Potter” could be protected as a trademark if used a overall brand for merchandise, book series, film series, amusement park rides, and so forth.
The same is true in music. Use of the same title in the song could not be trademark infringement under that rule. As such, this would fall into the domain of copyright law.
Copyright law protects authors of works by granting them certain exclusive rights to their original creative work. The most important of these rights is to prevent unauthorized copying, use, and distribution of their work. In music this is a major issue for many music authors since the industry is full of “sampling” – taking a chorus or beat from an existing song and changing it by remixing it with other beats or edits to create a new sound. The layman rule of thumb is the more the work is transformed into something new the less likely the original author can claim infringement. The proper test is called Fair Use, which is what GoldieBox will be using as a defense.
Fair Use, just like the trademark rule against song titles, is a legal defense to copyright infringement. It exists to allow some uses of a protected works by others to keep the freedom of ideas and expressions vibrant in society. This is seen as a compromise between the First Amendment and the small monopoly of ideas allowed by copyright law. The four factors of fair use are the nature of the unauthorized use, the nature of the original work, the amount and portion of the original work appropriated, and what effects the work will have on the current marketplace.
Parody’s are protected under the first prong of the test, as they are legally seen as commentary on the original work which falls under strong First Amendment protections. However, they are notoriously difficult to predict in federal cases as the result often depends on the sense of the humor of the judge. In this case there is a direct opposing view on the lyrical viewpoint of women that runs strongly in Goldiebox’s favor, viewing women as scientists and engineers rather than homemakers.
The other major issue will be the amount of work taken from the original. The federal tests for this vary from jurisdiction to jurisdiction, but in the 9th Circuit where this case was filed the courts tend to look more the overall impact of the taken work than the word count of taken material. Did the unauthorized use taken an entire identifying chorus, or just a few words?
For example, Katy Perry used the term “eye of the tiger” in her recent song “Roar.” The term has heavy connotations with the Survivor song “Eye of the Tiger” of course. However, because the title “Eye of the Tiger” could not be trademarked it would fall under copyright law. A court would look at the amount of the work taken – three words – and the impact of those words – strong, as they are used in the chorus Perry’s song and in Survivor’s song as well. However, that is all that was taken. No other lyrics from the original work were used or referred to. This would make it extremely unlikely for Survivor to win.
An opposing example was Perry’s “California Girls” song released in 2010 and the Beach Boy’s song “California Girls”. Once again the song names were fine as they could not be trademarked, and she was careful to avoid using any lyrics or terms close to the Beach Boy’s original. The issue was Snoop Dogg, who used the term “I wish they all could be California Girls” in his rap portion of the song. This landed Perry in hot water, and led to threat of a copyright suit by the Beach Boys unless they modified the lyric. They complied and a suit was averted.
In this case the lyrics and beat match up quite a bit, so this seems to swing things in the Beastie Boys favor. The best defense here is the same as the first – the edits to the lyrics were part of the parody and to create a sense of irony in relation to the original.
All in all GoldieBox has a strong chance of ending the suit early on their parody defense, but even if the Beastie Boys lose the suit may have been worth it for them. Copyrights, like trademarks, are self policed intellectual property and the rights attached to both can be lost or diluted by not protecting them with litigation or threats of litigation. Laches could apply if they sit on their rights, and later suits can point at earlier inaction as evidence of compliance to their use. A copyright holder should always speak to their attorney when they find material similar to their own and discuss how best to approach the situation. Similarly, people thinking to use portions of other copyright laters should clear the use with their attorney beforehand and discuss potential risks.