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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 http://blogs.reuters.com/felix-salmon/2013/11/26/goldieblox-fair-use-and-the-cult-of-disruption/ 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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