Update: GoldieBlox removed the original video and posted a public apology. See below for updates.

Everyone thinks they know how copyright works, and everyone’s usually wrong. Who can blame them? It’s often counterintuitive, inconsistent, and riddled with grey areas and edge cases.

And no area of copyright law is more confusing than fair use, deliberately designed to be judged in court on a case-by-case basis without any “bright line” tests to guide the way.

The test for fair use is a balancing act of four factors, but how they’re weighed is often subjective, determined by a judge. Different judges rule differently on similar fair use cases, and circuit courts commonly reverse fair use rulings from district courts on appeal.

If even judges can’t agree on fair use, what chance do the rest of us have of understanding it?

In fair use, there’s no silver bullet and exceptions are the norm. Some parodies are fair use, others aren’t. Commercial use can weigh against a fair use ruling, but there are many notable commercial exceptions. Using a substantial amount of the original artwork can hurt your case, other times it doesn’t matter. Damaging the market value of an original artwork can hurt your claim or, as with parodies, it may not matter at all.

So, how does that play out in GoldieBlox v. Beastie Boys?

It’s entirely possible that the GoldieBlox video is simultaneously:

A parody

An advertisement

A derivative of the Beastie Boys’ copyrighted work

A violation of MCA’s dying wishes

And, yet, perfectly legal under the fair use doctrine.

Only a judge can decide whether GoldieBlox’s parody is fair use. And, until they do and all the appeals are closed, none of us will know.

In the meantime, let’s bust some myths!

Disclaimer: Hey, I’m not a lawyer either. But I’ve been writing about copyright here for over ten years and dealt with several copyright disputes myself, including my tangle with fair use from Kind of Bloop. I’m going to try to avoid any conjecture here, and stick to actual case law. If I miss something, please let me know.

Myth: The Beastie Boys sued GoldieBlox.

The Beastie Boys were quick to debunk this one themselves in their open letter. “When we tried to simply ask how and why our song ‘Girls’ had been used in your ad without our permission,” they wrote, “YOU sued US.”

But GoldieBlox filed a very particular type of lawsuit, a declaratory judgement. Unlike typical lawsuits, GoldieBlox isn’t seeking damages. They’re asking the court to issue an opinion without ordering Beastie Boys to do anything in particular or pay damages, beyond possibly their own legal expenses.

This appears confusingly aggressive, but it’s a common tactic when threatened with a copyright lawsuit. If it works, the court’s clarification can save the time and money spent fighting an expensive trial. You may remember Robin Thicke reluctantly suing Marvin Gaye’s family, when they threatened to take him to court over “Blurred Lines.” Same deal.

Update: Yesterday, on December 10, the Beastie Boys filed a countersuit. So now they actually are suing GoldieBlox.

Myth: It’s an advertisement, so it’s not fair use.

More than any other, I’ve seen this myth repeated everywhere. Can a company parody a famous artist’s work and use it, against their will, to advertise an unrelated product? Actually, yes, as long as the use is transformative enough.

The most famous case is the Naked Gun advertisement below, a parody of photographer Annie Leibovitz’s famous portrait of Demi Moore for Vanity Fair.

If you care about this sort of thing, the District Court’s decision is a fantastic, and surprisingly readable, breakdown of the history of parody and fair use.

In her decision, Judge Preska noted that the landmark 2 Live Crew case, settled by the Supreme Court only two years earlier, set a new precedent for deciding fair use cases.

In that case, the Supreme Court ruled that commercial use does not preclude a finding of fair use, so long as the work is “transformative” — does it add value to the original material and use it for a different purpose, such as criticism or parody?

Delivering the opinion of the Supreme Court, Justice Souter wrote, “The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works… The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

Later in the ruling, Justice Souter specifically addressed parodies in advertising. He wrote, “The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake.”

In the Naked Gun case, armed with this new precedent, the District Court decided in Paramount Pictures’ favor:

“I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one.”

Annie Leibovitz appealed, but the 2nd Circuit Court affirmed the decision, saying, “On balance, the strong parodic nature of the ad tips the first factor significantly toward fair use, even after making some discount for the fact that it promotes a commercial product.”

So, in the GoldieBlox case, the court will decide whether the parody’s criticism of “Girls” sexist lyrics outweigh its commercial nature. The EFF believes they will, and given the existing precedent, they may be right.

Myth: GoldieBlox stole from the Beastie Boys.

First off, infringement is not theft. These are two completely different terms with different meanings. If GoldieBlox stole something, the Beastie Boys wouldn’t have it anymore.

Second, it’s worth noting that GoldieBlox didn’t sample from the original song. (If they had, this would be a very different lawsuit.) Their parody was recorded with new instrumentation, vocals, and lyrics.

GoldieBlox used the composition to create a derivative work. Because it was unlicensed and created without permission, that new work may infringe the Beastie Boys’ copyright. This lawsuit will determine whether it’s infringement or fair use.

But however you look at it, it’s not stealing.

Myth: The Beastie Boys always have a right to decide how their music is used.

Usually, but not always! The Copyright Act grants broad exclusive rights to musicians to control the reproduction, performance, and distribution of their work for an absurdly long time—70 years after their death.

But there are a number of exceptions. Musicians can’t, for example, stop the secondhand sale of their albums or stop people from covering their songs.

Similarly, fair use is an exception to those exclusive rights. If someone can defend their use of a song in court, and the court rules it a fair use, then that use is legal and outside the artist’s control.

Myth: Adam Yauch’s will forbids using his songs in advertising, so it’s illegal.

In his last will, MCA stated that “in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”

By ignoring the last wishes of one of hip-hop’s greatest musicians, less than two years after his death, there’s a strong argument to be made that what GoldieBlox is doing is unethical. To me, it feels crass and insensitive.

But is it illegal? Not if the court finds the parody to be fair use.

This isn’t a moral judgement, and this isn’t copyright activism. This is the law, as it exists right now.

Myth: If this is legal, then any company can parody songs in ads for free.

The crux of this case is whether the GoldieBlox parody is transformative. The parody video’s new lyrics criticize the misogynistic lyrics of the original Beastie Boys song. If it didn’t, there wouldn’t be a case.

Any other parody in advertising that doesn’t transform the original will still need permission and pay licensing fees. Snuggie will still have to pay for their version of the Macarena because it doesn’t comment or criticize the original in any way.

It’s worth noting that this isn’t the first time GoldieBlox used a song in an ad. This earlier ad from July rewrote some of the chorus to Queen’s “We Are the Champions”, but left most of it intact. I’d wager they never licensed this music either, and wouldn’t really have a defense if EMI came knocking.

Undetermined: The Beastie Boys were just asking questions and GoldieBlox sued them.

Neither party has released the initial complaint letter from the Beastie Boys, so we don’t know who sent the letters, the tone of the questions or what, if anything, they were demanding.

We do know that GoldieBlox claims in their lawsuit that they were contacted by “lawyers for the Beastie Boys” and the letter claimed that the video is “a copyright infringement, is not a fair use, and that GoldieBlox’s unauthorized use of the Beastie Boys intellectual property is a ‘big problem’ that has a ‘very significant impact.'”

It’s possible that GoldieBlox’s legal team is lying in a court filing, but it seems unlikely. More likely, the truth is somewhere in the middle. The law firm representing the Beastie Boys contacted GoldieBlox, asking for details and pushing them to delete the video. GoldieBlox felt they were in the right, and filed the request for declaratory judgment to find out.

I hope either party releases the original correspondence, it should be interesting.

Undetermined: This is all a publicity stunt.

It could be. GoldieBlox founder and CEO Debra Sterling, despite her Stanford engineering background, spent seven years as a brand strategist and marketing director before starting GoldieBlox. She definitely knows how to get publicity for her projects.

But there are certainly more affordable, less risky ways to gain publicity than filing a lawsuit. If they felt it wasn’t a serious threat, they could have simply gone public with the legal threat, posting the correspondence and writing a blog post.

But there’s no question this lawsuit has raised the profile of GoldieBlox, for better or worse.

The More You Know

So, who knows? This could go either way, and should be a fascinating case to watch. I’m in favor of more case law in either direction, helping draw the lines for what artists can or can’t do. It can be agonizing to make something that skirts the grey areas of copyright law without knowing whether you’re going to end up bankrupt.

Want to learn more?

Both the 2 Live Crew and Annie Leibovitz rulings are surprisingly readable explanations of how copyright and fair use are interpreted by the courts.

On the Media’s PJ Vogt published a great interview with Julie Ahrens, the director of Copyright & Fair Use at Stanford’s Center for Internet & Society. The EFF’s legal analysis is interesting, but I think they downplay the advertising issue too much. Rachel Sklar does her own fair use analysis.

On the other side of the spectrum, Felix Salmon blames Silicon Valley’s cult of disruption for GoldieBlox’s behavior. And, hey, are the toys actually any good?

Updates

Update: Last night, on November 26, GoldieBlox marked the original video private and uploaded a new version with modified music and all Beastie Boys references removed. This morning, founder and CEO Debbie Sterling posted this public letter to the Beastie Boys.

December 11: Yesterday, the Beastie Boys filed a countersuit for copyright and trademark infringement. We may see a ruling after all.

March 18, 2014: GoldieBlox settled out of court with the Beastie Boys, agreeing to publicly apologize and pay a percentage of proceeds to STEM education for girls.