There’s been a lot of news in the past week about the legal kerfuffle between the Beastie Boys and a company called GoldieBlox, which markets science/engineering toys aimed at girls (and their parents) seeking something beyond the standard pink princess fare.

Apparently, GoldieBlox has successfully leveraged the “viral” qualities of the net to project their “disruptive” brand, and the latest example does so spectacularly well, via a parody of the Beastie Boys’ well-worn, decades-old, silly misogynist ditty, “Girls.”

In fact, my first encounter with GoldieBlox’s version of “Girls” arrived via word of mouth (i.e., Gchat), just the way viral videos are supposed to. My wife shared the link with me, as we ourselves are constantly struggling with the balance between giving our daughters lots of options for growth and play, on the one hand, and indulging their seemingly irrepressible desire to parade around as princesses on the other. As that type of dad, I couldn’t help but myself be smitten by the ad —

So, I was as surprised as anyone to learn about the legal battle currently underway over this parody of a parody (if, in the initial instance, an ambiguous one). Obviously, GoldieBlox’s “Girls” is derived from the Beasties’ “Girls,” but it’s a complete re-recording, marshaling certain familiar elements — the riff, the refrain, and certain text/melodic lines — not all unlike the ways the Beasties themselves cribbed and borrowed and reassembled their own song out of prior performances.

Redolent of a schlocky musical and cultural past — and perhaps helping to give the song some of its parodic edge — the Beasties’ “Girls” makes audible nods to both the Isley Brothers and Bo Diddley. Beginning around 0:40 in the following video, you’ll hear Diddley play on guitar the very same riff the Boys coax out of their wonky synth:

And this mashup underscores pretty convincingly how much “Girls” is inspired by the Isley’s “Shout,” with parellels in terms of song syntax, repeated refrain, and even a few striking melodic parallels (e.g., “say that you love me…” == “to do the dishes…”):

What should we make of the Beastie Boys taking two songs deeply inspired by African-American religious ritual — the ring-shout in the case of the Isleys, and Diddley’s hand-clapping & foot-stomping “communion service” — in order to make a rearguard, if possibly parodic, song about women? On what grounds should the Beasties be allowed the privilege of doing something so derivative/transformative, while GoldieBlox should not?

For many, it would seem, the crucial point turns not on questions of musical borrowing and re-signification but rather, on the Beastie Boys’ stated wishes to keep their music out of advertisements, as articulated in their open letter —

make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

This is especially poignant given that Adam Yauch (aka MCA) made this same wish explicit in his will.

But then, GoldieBlox isn’t actually using the Beasties’ music. Or are they? It’s a question — and not an easy one to resolve. (For any of us, or for a judge or jury for that matter.) They’re certainly not using the Beasties’ recording, or even a sample from it. Why should we determine that the Beasties’ should be able to stop others from re-assembling the same pieces that they themselves assembled without licensing/permission in the first place? Should GoldieBlox respect the Beasties’ wishes?

What about, say, James Newton’s wishes? An avant-jazz flutist, Newton famously insisted that the Beasties’ use of a sample of his flute performance on “Choir” for the Beasties’ “Pass the Mic” constituted copyright infringement, but a court ruled that the snippet was too short to constitute a part of his composition, and since the Boys had licensed the recording from Newton’s record label (for a paltry $1000), they were allowed to go ahead and use it despite lacking Newton’s permission.

Generally speaking, as readers of W&W will know, I support that sort of relatively unbridled approach to transformative re-use. Songs are shared things, and if you don’t want someone to play or sing along, hold them close and sing them quietly in the corner. Once something is out in the open, in public, via commercial or even non-commercial circulation, it becomes available for sharing and reinterpretation. Courts and lawyers and some artists like to draw hard and fast lines between folk culture and commercial culture, but these are usually little more than language games having to do with claiming ownership, not stable definitions of cultural domains. (Sometimes, they’re struggles over power and money, which are not to be diminished, though they are hardly at play in this case between some rich musicians and a successful start-up.)

When did “Girls” escape the Beasties’ creative control? Perhaps as soon as it was commercially released and massively distributed. In its own way, the Beastie’s “Girls” was, in the first instance, itself an advertisement — an ad for an album, an ad for concerts, an ad for a sophomoric act that the Beastie Boys took to the world and to the bank.

All that said, it’s still a little odd for the likes of the EFF to step into the fray, and to argue for fair use simply because they agree with Glodieblox’s putative politics. Clearly, commercial instances of parodic fair use have been upheld before — s/o Luther Campbell & Henry Louis Gates — but it’s always a matter of convincing some judge/jury about the lines people want to draw around musical ownership. Toward that end, I think considering the big musical picture here helps.

I mean, just imagine the chilling effect on other renditions of “Girls”! In a world of personal branding, where do we draw the line between commercial and non? Between advertisement and not?

Tell this guy Bro Chuy he’d better not “go viral” —

Or this girl for that matter —

And someone should really warn these squirrels not to attempt to monetize their questionable “parody” —

For my part, as a dad, I’ll be sure to teach my daughters how to reverse engineer our favorite Beastie songs as soon as the girls are ready for some serious digital music trickery.