GoldiBlox "Girls" Video: Fair dealing?

I have been asked what I thought about the GoldiBlox "Girls" video recently covered by Rolling Stone Magazine, and I have given my short answer here.  Here's my long answer.

If this were taking place in the Canadian court system, the courts would walk through a six-step test to determine whether the video was fair dealing.  The YouTube video gone viral makes use of a parodied version of the Beastie Boys's song 'Girls' while portraying girls rejecting pink feminized toys in favour of GoldiBlox's "toys for future engineers".  It is necessary to walk through all six factors; the 2012 revision of Canada's Copyright Act added parody to Canadian fair dealing provisions, but the purpose of the work (parody), while an important factor, is not the final factor in fair dealing determinations.

The Supreme Court of Canada has laid out six factors which must be considered when deciding what qualifies as fair dealing in this landmark decision (starting at paragraph 53).  We can also look to this decision for further elaboration on the six factors, which are:

1. the purpose of the dealing; 
2. the character of the dealing;
3. the amount of the dealing;
4. alternatives to the dealing;
5. the nature of the work; and 
6. the effect of the dealing on the work. 

Let's walk through them and think about how they might apply to the GoldiBlox video. 

1. the purpose of the dealing must be for one of the purposes defined under the Copyright Act.  Here, GoldiBlox claims that the video is a parody, which is one of the given purposes.  If we agree that the video is a parody, then we've passed step one.  On the other hand, the dealing might have multiple purposes.  Here, there is also a second purpose - to advertize GoldiBlox, which is not an allowable purpose for fair dealing in Canada. The court notes that one can't use an allowable purpose to hide a non-allowable purpose.  Does GoldiBlox try to "hide behind" parody to make what is really an advertisement?  Or is parody one of the legitimate purposes of commercial expression?  My hope and expectation is that the courts would view the parody as a true purpose of the video, and not a false purpose behind which to hide.
2. the character of the dealing: Here, the court asks whether multiple copies were made of the original work, or whether only a single copy made for personal use. The GoldiBlox video has certainly been disseminated widely.  It also has a commercial character.  These factors might tend to make the dealing less fair.
3. the amount of the dealing: Was the whole work copied, or only a small part?  Here, the entire song is parodied, taking many of the core identifiable elements of the song, but leaving out many of the original words and including a new recorded performance of the music.  The Court has acknowledged that it is sometimes necessary to copy the entire work.  Certainly it is often necessary to reproduce elements of an entire work to create a parody of that work, as GoldiBlox has done here.  It is my hope and expectation that the Court would see the amount of copying, in this case, as fair given the purpose of parody.
4. alternatives to the dealing: Here, the Court might ask whether GoldiBlox could have parodied the song without including the core elements of the song in their video.  Hmmmm.  Probably not. This would tend to make the dealing more fair.
5. the nature of the work: Here, the Court directs us to ask about the nature of the original work.  Was the original work confidential? Certainly not. The original work was a popular song.  This would tend to make the parody more fair than if it were a confidential work, for example.
6. the effect of the dealing on the work. Here, the Court asks us to consider whether the parody might compete in the market with the original work.  I think the answer, here, is clear: probably not.  This would tend to make the dealing more fair.

The other question that we might ask is about the moral rights of the creator of the original work.  Apparently  Adam Yauch prohibited the use of his music in ads in his will.  Here, the moral rights of the author of the work must be balanced against the fair dealing exception, and must take into account the right of freedom of expression through the vehicle of parody.  Marc Belliveau has posted the following thoughts on this question:

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners.

So, to answer the question, my bet is  on GoldiBlox.

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf

There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf