Yesterday, a New York City jury awarded the Beastie Boys 1.7 million in a copyright infringement case against Monster Energy Drink. Monster apparently admitted to using Beastie Boys songs in an online advertising video without the still living Beastie Boys and the estate of Adam Yauch’s permission. The result of this case is odd when juxtaposed with a lawsuit filed by the Beastie Boys in November of 2013 against GoldieBlox, Inc. that alleged GoldieBlox, Inc. inappropriately used adaptations of the Beastie Boys’ song Girls to promote GoldieBlox toys for girls. In the GoldieBlox case, GoldieBlox successfully argued that its song adaptation was a parody of the Beastie Boys song Girls. In essence, GoldieBlox argued that its version of the song promoted women’s rights, whereas the Beastie Boys version of Girls was demeaning to women. The parties in the GoldieBlox case ultimately settled and the case was dismissed with prejudice. The GoldieBlox case presented many issues such as: 1. Can one make a parody of a parody? The original song created and performed by the Beastie Boys was considered a parody. 2. Is this second parody transformative, and thus does it create a transformative market? 3. How do ancillary legal issues affect copyright infringement cases?
I think the answer to the first question is, yes, one may make a parody of a parody. As long as the second parody is poking fun of the initial creation, by definition, it is still a parody.
The second question is troubling in regard to how the Monster case was ultimately decided. In the GoldieBlox case, it was assumed the Beastie Boys settled because the GoldieBlox version of the song probably created a parody that was transformative, and thus created a transformative market that did not compete against the Beastie Boys market for their version of the song Girls. Numerous courts have followed the current trend of allowing subsequent creators to use and tweak copyrighted items, and deemed such use as fair use, as long as their new creation is transformative, and it thus creates a transformative market. Perhaps the difference between the Monster and GoldieBlox cases is that Monster did not create their own version of the Beastie Boys song, unlike GoldieBlox.
However, our third point, how do ancillary legal issues affect copyright infringement cases is relevant in both cases. Adam Yauch, a former and now deceased member of Beastie Boys, wrote in his will that the Beastie Boys would not license their music for advertising. In the GoldieBlox case, this seemed to weigh in favor of giving permission to GoldieBlox to create their own version of Girls and use it as they deemed necessary, because the explicit statement in Adam’s will seemed to clearly mandate that there is no readily available licensing apparatus with which to garner permission to use the Beastie Boys songs. However, the New York jury in the Monster case seemed to read the explicit statement in Adam’s will as meaning, Monster should have asked for permission to use the song Girls. It will be interesting to see whether this case is appealed.
For libraries, the GoldieBlox case offers further support for the trend gaining judicial support that when someone uses a copyrighted item in a transformative way that subsequently creates a transformative market, this is considered fair use. This trend is especially gaining momentum in the non-profit world, such as libraries. However, the Monster case reminds us that other legal issues such as probate (in this case possibly licenses, although it is debatable), can affect our decision in how to use copyrighted materials.