3 ms·

"It's not fair use if it is commercial" <- that statement isn't true. See Campbell v. Acuff-Rose Music Inc as an example where parody (for profit) still won.

anigbrowl 13y ago
You're on thin ice with that argument. Selling a parody of a creative work is commercial, but that's wholly different from presenting a commercial message for a separate product. Imagine a TV advert for cosmetics or apparel that used 'Pretty woman' (even in parodic form or heavily transformed): this is a very different kind of commercial application. In your example the parodist is selling a new version of the song; in the example above a new version of the song is being used to sell something else. This is a classic example of where licensing is appropriate because any resulting commercial transactions will not be made by an audience on aesthetic grounds of preference for the new song, but by customers who wish to purchase a girl-themed construction toy. I think your/the EFF's legal theory here is DOA and will be extremely surprised if GoldieBlox succeeds.
- ironchef 13y ago
  I guess I'm confused as to why. Commercial use is but one of the four factors (within the purpose and character factor). Is it only being used to supersede the original and generate commercial gains? Or is it being used to stimulate for general enrichment? In combination with criticism of the original song it could (I believe) be seen as the second. Because of the criticism it could be argued to be a transformative and not merely a derivative work, no?
  - anigbrowl 13y ago
    It's somewhat transformative, though mainly in the lyrical department; musically it doesn't use the original recording but it does employ the same compositional elements virtually unaltered, so it's not as transformative as it could be (eg 'quoting' a short musical sample as a motif in a more original composition). But losing any prong of the argument is a problem, and even the EFF admits the length amounts to almost the same as the original, while offering the weak excuse that it was necessary to show a sufficiently elaborate machine. I do agree that the harm that would be suffered by the band/publisher is negligible, but 'they can afford it' is a weak rationale; the band/label are in a much stronger position on this prong because they've consistently refused to license their work for commercial purposes, so they can argue that this represents brand dilution rather than the relatively paltry cost of a temporary license, leaving the door open for a finding of more significant economic damages. Now if they counter sue Goldie Blocks the court might not look too favorably on it, but as it is GB's suit IMHO amounts to little more than a temper tantrum about the company's inability to get what it wants. Of course, the firm may consider the publicity value to be greater than the legal costs.

anigbrowl 13y ago

You're on thin ice with that argument. Selling a parody of a creative work is commercial, but that's wholly different from presenting a commercial message for a separate product. Imagine a TV advert for cosmetics or apparel that used 'Pretty woman' (even in parodic form or heavily transformed): this is a very different kind of commercial application. In your example the parodist is selling a new version of the song; in the example above a new version of the song is being used to sell something else. This is a classic example of where licensing is appropriate because any resulting commercial transactions will not be made by an audience on aesthetic grounds of preference for the new song, but by customers who wish to purchase a girl-themed construction toy. I think your/the EFF's legal theory here is DOA and will be extremely surprised if GoldieBlox succeeds.

ironchef 13y ago
I guess I'm confused as to why. Commercial use is but one of the four factors (within the purpose and character factor). Is it only being used to supersede the original and generate commercial gains? Or is it being used to stimulate for general enrichment? In combination with criticism of the original song it could (I believe) be seen as the second. Because of the criticism it could be argued to be a transformative and not merely a derivative work, no?
- anigbrowl 13y ago
  It's somewhat transformative, though mainly in the lyrical department; musically it doesn't use the original recording but it does employ the same compositional elements virtually unaltered, so it's not as transformative as it could be (eg 'quoting' a short musical sample as a motif in a more original composition). But losing any prong of the argument is a problem, and even the EFF admits the length amounts to almost the same as the original, while offering the weak excuse that it was necessary to show a sufficiently elaborate machine. I do agree that the harm that would be suffered by the band/publisher is negligible, but 'they can afford it' is a weak rationale; the band/label are in a much stronger position on this prong because they've consistently refused to license their work for commercial purposes, so they can argue that this represents brand dilution rather than the relatively paltry cost of a temporary license, leaving the door open for a finding of more significant economic damages. Now if they counter sue Goldie Blocks the court might not look too favorably on it, but as it is GB's suit IMHO amounts to little more than a temper tantrum about the company's inability to get what it wants. Of course, the firm may consider the publicity value to be greater than the legal costs.