Remember when we thought, “Oh good, the fight between GoldieBlox and the Beastie Boys is over because they totally apologized for using the band’s song in their ad and switched it out!”? Yeah well, it ain’t over until it’s over and in this case, that involves a countersuit from the Beastie Boys.
They’re of the mind that the ad wasn’t fair use and as such, GoldieBlox should hand over whatever profits they made while the song parody was in the commercial.
At first it seemed that the Beastie Boys weren’t ready to go into legal fight mode: When GoldieBlox filed a suit to stake its claim on using the song under fair use, the band was all, “Whoa whoa, we just sent you a letter asking why you didn’t seek our permission, and now you’re jumping the gun with this lawsuit.” I paraphrase, but you get the point.
But that tune has changed to one of litigiousness, as the band has filed a counterclaim in court, saying that rewriting its song “Girls” doesn’t work as fair use, so fork over the cash you made off the popular YouTube video, reports GigaOm.
In the counterclaim filed yesterday in New York, the Beastie Boys ask for the moolah and also that GoldieBlox is liable for copyright and trademark infringement. The band points to the toy maker’s use of songs by Queen and Daft Punk, among others, in its commercial jingles without getting permission.
So is it fair use? Well, it might, but it’s tricky, points out the Onion A.V. Club: A judge will have to decide whether or not GoldieBlox’s use of the song had an effect on the song’s potential market, or in other words, if people weren’t buying copies of “Girls” because they had a rewritten version in the ad to listen to, I suppose.
Another consideration is how much of the song was used in the ad, as well as what it was using for — which in this case, was an advertisement so ostensibly, the goal was commercial gain. But just because it was in a commercial doesn’t mean the Beastie Boys will win.
We’ll leave it to the legal and judicial experts to decide, but for now, this fight is far from over. The Beastie Boys are seeking profits, damages, lawyers’ fees and an injunction to prevent GoldieBlox from using the song — though we doubt it’ll try that again.
The full lawsuit is below, via GigaOm: