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<nettime> GoldieBlox, fair use, and the cult of disruption

GoldieBlox, fair use, and the cult of disruption
By Felix Salmon, November 26, 2013

innovation | intellectal property | technology

If you google ?disrupt the pink aisle?, you?ll get 36,800 results, all
of which concern a San Francisco-based toy company named GoldieBlox. The
company first came to public attention in September of last year, when
it launched a highly-successful Kickstarter campaign which ultimately
raised $285,881. Like all successful Kickstarter campaigns, there was a
viral video; this one featured a highly-photogenic CEO called Debbie, a
recent graduate of ? you probably don?t need me to tell you this ?
Stanford University. And yes, before the Kickstarter campaign, there was
?a seed round from friends, family and angel investors?. When the viral
video kept on generating pre-orders even after the Kickstarter campaign
ended, GoldieBlox looked like a classic Silicon Valley startup: young,
exciting, fast-growing, and ? of course ? disruptive.

Not wanting to mess with a proven formula, GoldieBlox kept on producing
those viral videos: ?GoldieBlox Breaks into Toys R Us? was based on
Queen?s ?We Are The Champions?, and got over a million views. But that
was nothing compared to their latest video, uploaded only a week ago,
and already well on its way to getting ten times that figure. This one
was based on an early Beastie Boys song, ?Girls?, and deliciously
subverted it to turn it into an empowering anthem.

Under what Paul Carr has diagnosed as the rules of the Cult of
Disruption, GoldieBlox neither sought nor received permission to create
these videos: it never licensed the music it used from the artists who
wrote it. That wouldn?t be the Silicon Valley way. First you make your
own rules ? and then, if anybody tries to slap you down, you don?t
apologize, you fight. For your right. To parody.

In a complete inversion of what you might expect to happen in this case,
it is GoldieBlox which is suing the Beastie Boys. And they?re doing so
in the most aggressive way possible. There?s no respect, here, for the
merits of the song which has helped their video go massively viral and
which is surely helping to sell a huge number of toys. Instead, there?s
just sneering antagonism:

    "In the lyrics of the Beastie Boys? song entitled Girls, girls are
limited (at best) to household chores, and are presented as useful only
to the extent they fulfill the wishes of the male subjects. The
GoldieBlox Girls Parody Video takes direct aim at the song both visually
and with a revised set of lyrics celebrating the many capabilities of
girls. Set to the tune of Girls but with a new recording of the music
and new lyrics, girls are heard singing an anthem celebrating their
broad set of capabilities?exactly the opposite of the message of the
original. They are also shown engaging in activities far beyond what the
Beastie Boys song would permit."

This is faux-naïveté at its worst, deliberately ignoring the fact that
Girls, the original song, is itself a parody of machismo rap. The
complaint is also look-at-me move, positively daring the Beasties to
rise to the bait and enjoin the fight. Which the Beasties, in turn, are
trying very hard not to do. In their letter to GoldieBlox, the Beasties
make three simple points. They support the creativity of the video, and
its message; they?re the defendants in this suit, rather than the people
suing anybody; and, most importantly, they have a long-standing policy
that no Beastie Boys songs shall ever be used in commercial
advertisements. (They don?t mention, although they could, that this last
was actually an explicit dying wish of Adam Yauch, a/k/a MCA, and an
integral part of his will.)

Given the speed with which the GoldieBlox complaint appeared, indeed,
it?s reasonable to assume that they had it in their back pocket all
along, ready to whip out the minute anybody from the Beastie Boys, or
their record label, so much as inquired about what was going on. The
strategy here is to maximize ill-will: don?t ask permission, make no
attempt to negotiate in good faith, antagonize the other party as much
as possible.

This way, at least, the battle lines get drawn pretty clearly. The
jurisprudential analysis comes out, defending GoldieBlox and its right
to use the Beasties? song as parody. After all, fair use is a protection
under the law, which means that if it applies, then it doesn?t matter
what the Beasties think, or want: GoldieBlox can do anything it likes.
On the other hand, in the key precedent for such issues, Campbell vs
Acuff-Rose Music, Justice Souter explicitly said that ?the use of a
copyrighted work to advertise a product, even in a parody, will be
entitled to less indulgence? under the law than ?the sale of a parody
for its own sake?.

This is a distinction the Beasties intuitively understand. After all,
this version of Girls has been viewed more than 3 million times on
YouTube, without so much as a peep from the Beasties. And if you simply
lop off the last few seconds of the GoldieBlox version ? the bit where
they shoehorn in the GoldieBlox branding ? then that, too, would surely
have been fine. If all GoldieBlox wanted to do was get out a viral
message about empowering girls, they could easily have done that without
gratuitously antagonizing the Beastie Boys, or putting the Beasties in
their current impossible situation.

Instead, however, GoldieBlox did exactly what you?d expect an entitled
and well-lawyered Silicon Valley startup to do, which is pick a fight.
It?s the way of the Valley ? you can?t be winning unless some
household-name dinosaur is losing. (The Beasties are actually the second
big name to find themselves in the GoldieBlox crosshairs; the first was
Toys R Us.) The real target of the GoldieBlox lawsuit, I?m quite sure,
is not the Beastie Boys. Instead, it?s the set of investors who are
currently being pitched to put money into a fast-growing,
Stanford-incubated, web-native, viral, aggressive, disruptive company
with massive room for future growth ? a company which isn?t afraid to
pick fights with any big name you care to mention.

Because in Silicon Valley, people will always prefer to invest in that
kind of company, rather than in a toy company whose toys, in truth,
aren?t actually very good.

Update: Turns out that GoldieBlox CEO Debbie Sterling was making
deliberately-controversial viral videos long before she conceived of
GoldieBlox. I?m not sure what to say about this, except that if you
played any part in making it, you should never, ever get the benefit of
the doubt.

Update 2: And here is Debbie?s blog from when she was in India, it has
to be read to be believed. To think that this woman is trying to claim
the moral high ground over Adam Yauch.

Update 3: GoldieBlox has now removed the video, saying that it does want
to respect the Beasties? wishes after all.

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