Goldiebox, Inc., the toy company that created a viral promotional parody video using the Beastie Boys’ song “Girls,” is now willing to drop its lawsuit seeking a declaratory judgment that the video makes fair use of the Beastie Boys’ track. The promotional parody video was set to the tune of “Girls,” but boasted of new lyrics celebrating the many capabilities of girls. Since its release two weeks ago, the video has already gained over 8 million views on YouTube. Goldiebox, offering engineering and construction toys specifically targeted to girls, claims that it created the video to break down gender stereotypes. Lawyers for the Beastie Boys take an expectedly different view, claiming that the video is a copyright infringement and is not a fair use of “Girls.” Since filing the suit in California federal court, Goldiebox has pulled the parody version of “Girls” from its promotional video and hopes to arrive at a peaceful settlement.

This suit is reminiscent of the seminal case involving fair use and rap parodies, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The Court in Acuff-Rose considered whether 2 Live Crew’s parody of “Pretty Woman” can be protected under the fair use doctrine despite the fact that the parody is used for commercial purposes. The Court held that the commercial nature of the parody did not prevent it from being protected by the fair use doctrine. On its face, this precedent offers some promise for Goldiebox. The Court, however, makes a distinction between the commercial nature of a parody sold for its own sake and the commercial nature of a parody used as an advertisement. The Court makes clear that parodies used as advertisements will be entitled to less indulgence than other types of commercial parodies in fair use determinations. Acuff-Rose, 510 U.S. at 585.

This suit should serve as a reminder for advertisers looking to go viral with promotional parody videos. Never make fair use assumptions. Always seek counsel for fair use analysis.

Jalyce Mangum contributed to this post. Ms. Mangum is practicing under the supervision of principals of the firm who are members of the D.C. Bar