This post was written by Jesse Woo and originally published on the Washington Lawyers for the Arts Blog. Read the full post.
To recap where we left off, in a very short period of time we went from feminist Legos (K’Nex?) to full blown intellectual property litigation. It seems that GoldieBlox’s offer to drop its suit fell on deaf ears, because that option was foreclosed once Beastie Boys filed its counterclaim. As mentioned, Beastie Boys counterclaimed on several different theories, but its principal claim is for copyright infringement. Likewise, GoldieBlox’s original suit only addressed the fair use issue in copyright.
The concept of fair use is codified in 17 USC §107. It is an expansive topic, but when a court considers a fair use defense it must weigh four factors: 1) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes; 2) the nature of the original, copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4) the effect of the use on the potential market for the original copyrighted work. This is not an exclusive list of factors for analyzing fair use, but most courts limit their analysis to these four factors. What is immediately striking from this legal test is how difficult it is to determine what constitutes fair use without the aid of a court. While there are some other categorical exceptions to copyright (like the library exception) there are few per se fair uses of a copyrighted work. These kinds of balancing tests are notorious for allowing judges wide latitude in deciding cases, and the uncertainty can have a chilling effect on creative uses of works. Nonetheless, EFF has a good analysis of the factors and why the court should declare the GoldieBlox video fair use. As they mention, a great irony of this lawsuit is the Beastie Boys’ pioneering legal efforts in using the fair use defense in sampling cases.