Two high-profile infringement cases settled last month, resolving disputes between a toy company and a rap group as well as ending litigation over an artist’s use of a photographer’s images.
The first case began with a viral online video. A toy company featured a parody of the Beastie Boys’ 1987 hit “Girls” in its GoldieBlox’s ad for its new line of engineering toys for girls. GoldieBlox struck first, arguing in a declaratory judgment action that the updated version of the song constituted fair use. The rap group responded with copyright and trademark infringement counterclaims, noting that in more than 20 years, it had never licensed its works for advertisements.
After much public back-and-forth, the parties reached a truce.
GoldieBlox agreed to issue a public apology to the Beastie Boys and posted the following on the company’s Web site. “As engineers and builders of intellectual property, we understand an artist’s desire to have his or her work treated with respect. We should have reached out to the band before using their music in the video.”
In addition, the toy company will make a payment based on a percentage of revenues “to one or more charities selected by the Beastie Boys that support science, technology, engineering and mathematics education for girls,” according to a statement from the rap group.
In the second case, a long-running dispute with ramifications for the boundaries of “transformative use” also came to an end. Photographer Patrick Cariou published a book of landscapes and classical portraits called Yes Rasta after spending six years living with Rastafarians in Jamaica. In a series of collages and paintings called Canal Zone, well known “appropriation artist” Richard Prince made use of the photographs. For example, in one collage, Prince tore 35 photographs out of the book and painted “lozenges” over the subjects’ facial features. Other pieces used enlarged or tinted photographs.
Cariou sued for copyright infringement and Prince raised a defense of fair use. Although a federal district court disagreed, the Second U.S. Circuit Court of Appeals ruled that Prince’s use of the photographs was transformative in the majority of his pieces and therefore constituted fair use.
However, the federal appellate panel remanded the case for a determination of five images the court said were so minimally altered they might not be considered fair use.
Facing continued litigation, the parties agreed to a settlement, the terms of which are undisclosed.
Why it matters: Both of the cases played out in the public eye, providing some lessons for advertisers. In the case of GoldieBlox, be careful what you wish for. The upstart company had the good fortune to create a viral ad, but its failure to get the proper permissions cast a shadow on its big debut. And the Cariou v. Prince case resulted in new case law examining the issue of transformative use.