GoldieBlox Fair Use

Fair use of copyrighted works and trademarks should provide solid footing for innovators engaging in remix culture, but those who rely on its protections often tread on thin ice that can collapse under the weight of significant litigation costs and uncertain, fact-intensive requirements. The recent dispute between GoldieBlox (a startup toy company with a girl-empowerment agenda) and the Beastie Boys highlights the benefits and risks of relying on the fair use doctrine in the commercial context. See GoldieBlox, Inc. v. Island Def Jam Music Group, No. 13-cv-05428 (N.D. Cal. Filed Nov. 21, 2013). Particularly in the advertising context, with increased marketing attention to viral campaigns, decision-makers need to be more aware than ever of the business and legal aspects of remixing protected intellectual property. Outside the legal context, however, GoldieBlox's strategy was a major success—its viral ad won Intuit's "Small Business Big Game" contest, and the company aired a delightful new advertisement—using licensed music from Slade/Quiet Riot—during Super Bowl XLVIII to an estimated 111.5 million viewers.

Background

GoldieBlox is a Bay Area startup with the goal to "get girls building." The Stanford-educated founder and CEO, Deborah Sterling, aims to provide construction toys that encourage young women to pursue careers in science, technology, engineering, and math (STEM subjects). Around February 2013, the company launched an integrated children's book and construction set called GoldieBlox and the Spinning Machine. Over the summer, the toy reached Amazon's "Top 100 Toys & Games Best Sellers".

On November 18, 2013, GoldieBlox released an online video titled "GoldieBlox, Rube Goldberg, & Beastie Boys 'Princess Machine.'" The video shows young girls triggering a complicated Rube Goldberg device, while playing original lyrics set to the music for the Beastie Boys' 1986 hit anthem "Girls." Whereas the Beastie Boys recited lyrics such as "Girls to do the dishes / Girls to clean up my room / Girls to do the laundry / Girls and in the bathroom," GoldieBlox replaced those lyrics with a more empowering message: "Girls to build a spaceship / Girls to code the new app / Girls to grow up knowing / That they can engineer that." The video quickly went viral, garnering over 8.5 million views on YouTube.

Three days after GoldieBlox released the video, the Beastie Boys' lawyer contacted GoldieBlox's attorneys to ask about GoldieBlox's use of the Beastie...