So a toy company made a commercial which featured a parody of the classic Beastie Boys song "Girls". (I mean classic in the sense of well-known-and-not-contemporary, not as a comment on its value as a song. Whether the blatantly mysoginistic lyrics are meant to be taken seriously or are intended as a parody, similar to what the Beastie Boys did with "(You Gotta) Fight For Your Right (To Party!)", is a debate for some other blog to take up).
Anyway, the video became a viral sensation. And then things got weird.
The video (embedded below) is an advertisement for toy company GoldieBlox, who produces "toys for future inventors". The video replaces the original lyrics of the song with more empowering lyrics about girls being more than princesses: becoming inventors, making apps, being engineers etc.
The video was a huge hit online, being re-posted just about everywhere. Someone representing the Beastie Boys sent a letter to GoldieBlox saying... well, I'm not sure what it said. The letter has never been posted. GoldieBlox alleges it threatened them with a copyright infringement lawsuit, while the Beastie Boys say it was merely asking questions. Then GoldieBlox filed a lawsuit seeking a declatory judgment that their parody is fair use under US copyright law. In response to this, the Beastie Boys published an open letter to GoldieBlox stating the letter was just an attempt to make clear their stance that their music is not to be used in advertisements.
The case has obvious parallels to the classic US fair use case of Campbell v. Acuff-Rose Music. In that case the court held that commercial parodies could be fair use and that 2 Live Crew did not infringe upon Roy Orbison's copyright by producing and releasing a parody of his song "Oh, Pretty Woman". Most legal bloggers seem to be of the opinion that GoldieBlox is in the right on this one: their parody is a classic case of fair use and so does not infringe upon the Beastie Boys copyright. Of course, that may just reflect the bias in the legal blogs I choose to read. Regardless, it hasn't stopped anyone from pointing fingers.
Those supporting GoldieBlox take great pleasure from pointing out that the Beastie Boys album Paul's Boutique contains a ton of samples from other pieces of music. Even today, fourteen years after the album was released, there is STILL litigation going on around some of those samples. Supporters of the Beastie Boys point to the fact that the will of recently deceased Beastie Adam Yauch expressly denied any permission for his music to be used in advertising.
While the first point might out the Beasties as hypocrites, from a legal perspective, it probably doesn't make any difference. And the same is true of the second point: as Techdirt put it, Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care.
This is a point that I feel often gets lost in discussions on fair use, or fair dealing as we say up north. The whole point of fair use is that it's about when content may be used without the author's permission. As an author, you can't just revoke someone's fair use rights because you don't like what they're doing with your work. Fair use doesn't care that you don't like it. The author's opinion of what the other person is doing with their work, or of fair use principles in general, aren't relevant. Well, that's not totally true. Their opinions are relevant to the extent that they can demonstrate that the law supports their opinion. But no further.
I think the reason this point gets lost is that people often fail to distinguish between whether they are talking about what the law is, or what they feel the law should be. If you're talking about what you feel the law should be, then opinions matter. However, when it comes to talking about how the law, as it currently exists, applies to a specific fact situation, then they don't. (To be clear, in this post, I am talking about what the law is.)
The same is true of fair dealing in Canada. When the Author's Guild of Canada releases a study showing that 86% of their members disagree with the fair dealing guidelines that Canadian universities have adopted, that's nice but it doesn't matter. The law doesn't care how you feel about it. Unless your opinion is backed up with legal precedent, neither do the courts. If you want to have a discussion about what fair dealing should be, talk to your Member of Parliament, not a judge.
Consider this quote from the Supreme Court of Canada's judgment in CCH Canadian Ltd. v. Law Society of Upper Canada. The court is discussing whether a copyright owner's decision to make a license to use their work available is relevant in considering whether an un-licensed use of the work qualifies as fair dealing:
 The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.
This is analogous the argument the Beastie Boys situation. Their supporters are saying "The Beastie Boys have refused to license their work for the uses which GoldieBlox put them to". It seems clear that, in both the US and Canada, that doesn't matter. (Of course, CCH was talking about a situation where a license was available but the alleged infringer chose not to purchase it, but I think the statement that "[t]he availability of a licence is not relevant to deciding whether a dealing has been fair" makes it clear that the non-availability of a license would also not matter).
(Hat tip to pretty much the entire Interwebs for this one).