Update: GoldieBlox removed the original video and posted a public apology. See below for updates.
Everyone thinks they know how copyright works, and everyone’s usually wrong. Who can blame them? It’s often counterintuitive, inconsistent, and riddled with grey areas and edge cases.
And no area of copyright law is more confusing than fair use, deliberately designed to be judged in court on a case-by-case basis without any “bright line” tests to guide the way.
The test for fair use is a balancing act of four factors, but how they’re weighed is often subjective, determined by a judge. Different judges rule differently on similar fair use cases, and circuit courts commonly reverse fair use rulings from district courts on appeal.
If even judges can’t agree on fair use, what chance do the rest of us have of understanding it?
In fair use, there’s no silver bullet and exceptions are the norm. Some parodies are fair use, others aren’t. Commercial use can weigh against a fair use ruling, but there are many notable commercial exceptions. Using a substantial amount of the original artwork can hurt your case, other times it doesn’t matter. Damaging the market value of an original artwork can hurt your claim or, as with parodies, it may not matter at all.
So, how does that play out in GoldieBlox v. Beastie Boys?
It’s entirely possible that the GoldieBlox video is simultaneously:
- A parody
- An advertisement
- A derivative of the Beastie Boys’ copyrighted work
- A violation of MCA’s dying wishes
- And, yet, perfectly legal under the fair use doctrine.
Only a judge can decide whether GoldieBlox’s parody is fair use. And, until they do and all the appeals are closed, none of us will know.
In the meantime, let’s bust some myths!
Disclaimer: Hey, I’m not a lawyer either. But I’ve been writing about copyright here for over ten years and dealt with several copyright disputes myself, including my tangle with fair use from Kind of Bloop. I’m going to try to avoid any conjecture here, and stick to actual case law. If I miss something, please let me know.
Myth: The Beastie Boys sued GoldieBlox.
The Beastie Boys were quick to debunk this one themselves in their open letter. “When we tried to simply ask how and why our song ‘Girls’ had been used in your ad without our permission,” they wrote, “YOU sued US.”
But GoldieBlox filed a very particular type of lawsuit, a declaratory judgement. Unlike typical lawsuits, GoldieBlox isn’t seeking damages. They’re asking the court to issue an opinion without ordering Beastie Boys to do anything in particular or pay damages, beyond possibly their own legal expenses.
This appears confusingly aggressive, but it’s a common tactic when threatened with a copyright lawsuit. If it works, the court’s clarification can save the time and money spent fighting an expensive trial. You may remember Robin Thicke reluctantly suing Marvin Gaye’s family, when they threatened to take him to court over “Blurred Lines.” Same deal.
Update: Yesterday, on December 10, the Beastie Boys filed a countersuit. So now they actually are suing GoldieBlox.
Myth: It’s an advertisement, so it’s not fair use.
More than any other, I’ve seen this myth repeated everywhere. Can a company parody a famous artist’s work and use it, against their will, to advertise an unrelated product? Actually, yes, as long as the use is transformative enough.
The most famous case is the Naked Gun advertisement below, a parody of photographer Annie Leibovitz’s famous portrait of Demi Moore for Vanity Fair.
If you care about this sort of thing, the District Court’s decision is a fantastic, and surprisingly readable, breakdown of the history of parody and fair use.
In her decision, Judge Preska noted that the landmark 2 Live Crew case, settled by the Supreme Court only two years earlier, set a new precedent for deciding fair use cases.
In that case, the Supreme Court ruled that commercial use does not preclude a finding of fair use, so long as the work is “transformative” — does it add value to the original material and use it for a different purpose, such as criticism or parody?
Delivering the opinion of the Supreme Court, Justice Souter wrote, “The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works… The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Later in the ruling, Justice Souter specifically addressed parodies in advertising. He wrote, “The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake.”
In the Naked Gun case, armed with this new precedent, the District Court decided in Paramount Pictures’ favor:
“I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one.”
Annie Leibovitz appealed, but the 2nd Circuit Court affirmed the decision, saying, “On balance, the strong parodic nature of the ad tips the first factor significantly toward fair use, even after making some discount for the fact that it promotes a commercial product.”
So, in the GoldieBlox case, the court will decide whether the parody’s criticism of “Girls” sexist lyrics outweigh its commercial nature. The EFF believes they will, and given the existing precedent, they may be right.
Myth: GoldieBlox stole from the Beastie Boys.
First off, infringement is not theft. These are two completely different terms with different meanings. If GoldieBlox stole something, the Beastie Boys wouldn’t have it anymore.
Second, it’s worth noting that GoldieBlox didn’t sample from the original song. (If they had, this would be a very different lawsuit.) Their parody was recorded with new instrumentation, vocals, and lyrics.
GoldieBlox used the composition to create a derivative work. Because it was unlicensed and created without permission, that new work may infringe the Beastie Boys’ copyright. This lawsuit will determine whether it’s infringement or fair use.
But however you look at it, it’s not stealing.
Myth: The Beastie Boys always have a right to decide how their music is used.
Usually, but not always! The Copyright Act grants broad exclusive rights to musicians to control the reproduction, performance, and distribution of their work for an absurdly long time—70 years after their death.
But there are a number of exceptions. Musicians can’t, for example, stop the secondhand sale of their albums or stop people from covering their songs.
Similarly, fair use is an exception to those exclusive rights. If someone can defend their use of a song in court, and the court rules it a fair use, then that use is legal and outside the artist’s control.
Myth: Adam Yauch’s will forbids using his songs in advertising, so it’s illegal.
In his last will, MCA stated that “in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”
By ignoring the last wishes of one of hip-hop’s greatest musicians, less than two years after his death, there’s a strong argument to be made that what GoldieBlox is doing is unethical. To me, it feels crass and insensitive.
But is it illegal? Not if the court finds the parody to be fair use.
This isn’t a moral judgement, and this isn’t copyright activism. This is the law, as it exists right now.
Myth: If this is legal, then any company can parody songs in ads for free.
The crux of this case is whether the GoldieBlox parody is transformative. The parody video’s new lyrics criticize the misogynistic lyrics of the original Beastie Boys song. If it didn’t, there wouldn’t be a case.
Any other parody in advertising that doesn’t transform the original will still need permission and pay licensing fees. Snuggie will still have to pay for their version of the Macarena because it doesn’t comment or criticize the original in any way.
It’s worth noting that this isn’t the first time GoldieBlox used a song in an ad. This earlier ad from July rewrote some of the chorus to Queen’s “We Are the Champions”, but left most of it intact. I’d wager they never licensed this music either, and wouldn’t really have a defense if EMI came knocking.
Undetermined: The Beastie Boys were just asking questions and GoldieBlox sued them.
Neither party has released the initial complaint letter from the Beastie Boys, so we don’t know who sent the letters, the tone of the questions or what, if anything, they were demanding.
We do know that GoldieBlox claims in their lawsuit that they were contacted by “lawyers for the Beastie Boys” and the letter claimed that the video is “a copyright infringement, is not a fair use, and that GoldieBlox’s unauthorized use of the Beastie Boys intellectual property is a ‘big problem’ that has a ‘very significant impact.'”
It’s possible that GoldieBlox’s legal team is lying in a court filing, but it seems unlikely. More likely, the truth is somewhere in the middle. The law firm representing the Beastie Boys contacted GoldieBlox, asking for details and pushing them to delete the video. GoldieBlox felt they were in the right, and filed the request for declaratory judgment to find out.
I hope either party releases the original correspondence, it should be interesting.
Undetermined: This is all a publicity stunt.
It could be. GoldieBlox founder and CEO Debra Sterling, despite her Stanford engineering background, spent seven years as a brand strategist and marketing director before starting GoldieBlox. She definitely knows how to get publicity for her projects.
But there are certainly more affordable, less risky ways to gain publicity than filing a lawsuit. If they felt it wasn’t a serious threat, they could have simply gone public with the legal threat, posting the correspondence and writing a blog post.
But there’s no question this lawsuit has raised the profile of GoldieBlox, for better or worse.
The More You Know
So, who knows? This could go either way, and should be a fascinating case to watch. I’m in favor of more case law in either direction, helping draw the lines for what artists can or can’t do. It can be agonizing to make something that skirts the grey areas of copyright law without knowing whether you’re going to end up bankrupt.
Want to learn more?
On the Media’s PJ Vogt published a great interview with Julie Ahrens, the director of Copyright & Fair Use at Stanford’s Center for Internet & Society. The EFF’s legal analysis is interesting, but I think they downplay the advertising issue too much. Rachel Sklar does her own fair use analysis.
Update: Last night, on November 26, GoldieBlox marked the original video private and uploaded a new version with modified music and all Beastie Boys references removed. This morning, founder and CEO Debbie Sterling posted this public letter to the Beastie Boys.
December 11: Yesterday, the Beastie Boys filed a countersuit for copyright and trademark infringement. We may see a ruling after all.
March 18, 2014: GoldieBlox settled out of court with the Beastie Boys, agreeing to publicly apologize and pay a percentage of proceeds to STEM education for girls.
Ever wanted to hear me blather on about different subjects for hours? You’re in luck! I’ve been invited on a number of podcasts recently, and for some reason, never mentioned it here.
This is just as much for my own records, but hey, here are all the podcasts I’ve spoken on lately. I just fixed your boring commute for a week!
The Crapshoot, November 14, 2013
Jesse Holden and Metafilter’s Josh Millard invited me to come shoot the crap in his basement. On the ride there, I tried to pick up some Four Loko, but found something so much better—Joose, 22 ounces of 12% ABV sickly-sweet malt beverage that tastes like Jolly Rogers soaked in turpentine. We ended up chatting for nearly two hours about Kind of Bloop, XOXO, my crazy Sunset Strip childhood, and weird experiments I’ve run on my son. A good time was had by all.
Let’s Make Mistakes, October 23, 2013
After Mule Radio’s Let’s Make Mistakes spent three consecutive episodes discussing this year’s XOXO, cofounder Mike Monteiro asked me to come on the show. I talked about what we learned from mistakes made during our registration process, the challenges of running an inclusive event, and the value of criticism.
The New Disruptors, June 19, 2013
Leading up to XOXO, Glenn Fleishman asked Andy McMillan and me to come on the podcast that we inspired him to start the year before. We talked about the previous year and what we were planning to follow it up.
Quit!, June 19, 2013
Andy McMillan and I went on Dan Benjamin’s show about quitting your day job and working on things you love, and had a great conversation about XOXO and our respective projects.
Here’s three more that I’ve enjoyed lately:
The New Disruptors is basically XOXO: The Podcast, a weekly interview by Glenn Fleishman with indie artists and makers using the network to make a living.
Welcome to Night Vale is like NPR in the Twilight Zone, the community radio station for a fictional desert town. I’m kind of surprised how many people I talk to that still have never heard of this.
How to Do Everything, in which listeners send Mike Danforth and Ian Chillag their questions about life and they find experts to answer them.
After running XOXO for two years, and doing a bunch of talks myself at various conferences, I’ve seen my share of presentation slides from non-designers.
Way too often, they look something like this:
Inevitably, they use one of the two basic Keynote templates — black on white, or white on black.
I get it! You’re not a designer. You’re a writer, filmmaker, musician, whatever, and even learning how to make these slides was kind of a big deal for you. So you stick with the default templates.
The problem with any defaults is that they’re boring and overused, which distracts from your message. They suck any life out of your story, and fixing it is so easy.
So I made a little guide with six simple tips for XOXO speakers to improve their slides in a couple minutes. I thought you might find it useful.
1. Use the right resolution.
At XOXO, we project slides on a widescreen movie-like display (a 16:9 aspect ratio, if you want to get geeky about it). But many projectors only support the standard 4:3 ratio, the default for most presentation software like Keynote and Powerpoint and your old TV.
Ask your event organizer if slides will be projected in widescreen. If so, be sure to use the 1280×720 resolution when you start your presentation. Otherwise, you’ll end up with black bars on both sides of your slides.
If it’s not widescreen, stick with the default 1024×768 resolution.
2. Fill the screen.
One of the most agonizing, fixable things is seeing a photo that someone placed unresized in the middle of a slide, surrounded by a sea of whitespace. Take that photo and scale it to fill every edge of the slide, even if it cuts off the edges. It’ll look better, and easier to see from the back rows.
3. Move it up.
Don’t put anything important in the bottom third area of your slide. Depending on your venue, there’s a good chance the people in the back won’t be able to see it, blocked by the heads of everyone in front of them. But this shouldn’t be an issue, as long as you…
4. Make it big.
Never have more than four or five words on a single slide. Any more than that, and people will start reading them instead of listening to you. If it’s a longer passage or quote, you’re going to have to read it out loud anyway for the back rows, so you might as well leave it off the screen.
Oh, and make them huge. I don’t think I’ve used anything smaller than 96 point type in years. Best slides I’ve ever seen? Cabel Sasser’s at XOXO.
The full-bleed photos and big, bold centered type on colorful backgrounds frame him throughout the talk, and create a wash of color and imagery for him to talk over that you can see from the back of the room. And it photographs beautifully. Follow his lead.
Photo by Ian Linkletter
5. Add some color.
The Keynote default is white text on black, or black text on white. As a deliberate design choice, this can sometimes work. But most of the time, it’s pretty generic.
Consider using a wash of color behind your giant type. Not sure where to start? Go to Colourlovers and pick out a scheme you like, and stick to it.
Or put the type over a relevant, full-screen photo, as long as it’s not distracting from readability. Even subtle full-screen video can work, if done well. All you’re trying to do is provide some texture to your talk. The focus should be on you.
6. Change the type.
Gill Sans is a great typeface, but because it’s the Keynote default, it shows up everywhere and feels deadly boring. Avenir, Seravek, and Helvetica Neue Condensed Bold are safe bets and ship with current versions of OS X. If you know what you’re doing, drop some money on a good commercial typeface.
Hope that helps!
It seems like everybody that went to XOXO wrote about it except for me. I’ve started and stopped this blog post several times over the past six weeks. Why is it so hard for me to spit something out about it?
Partly, I think, because it takes about that long for me to fully recover from it. I put a lot of myself into it, maybe too much, leaving me pretty creatively spent for a good chunk of time.
But the main reason, I think, is that it’s hard for me to capture in words alone. It’s the physical manifestation of so many things I care about, with so many people I love and admire interacting in so many different ways, that it’s hard to summarize cleanly. I keep flitting from memory to memory, trying to sum up six months of non-stop work culminating in a four-day bender.
Fortunately, we get great people to document a lot of it so I don’t have to. Like last year, we asked Maxine Denver to capture the feeling of XOXO on film, distilled into this two-minute video.
Like last year, we hired Brytcast to record and release every talk on YouTube. We asked them for a number of changes this year, and Mike and his team knocked it out of the park. The difference in quality between the two years is stark, and I’m thrilled with the results.
I know I’m totally biased, but the talks this year were kind of ridiculously great. Several rank among the best talks I’ve ever seen, and we want as many people to see them as possible. We know that not everybody can go to XOXO, so we put every talk online as soon as we can.
All 19 speakers from this year are on our YouTube channel, uploaded more or less in the order that they happened.
Each speaker brought something unique to the event, and I think every single one is worth watching. But three in particular moved me deeply, and I’ve watched each of these several times.
Cabel Sasser, cofounder of Portland’s own Panic, gave a very personal talk about coping with the stress that comes from staying independent. This had me, and most of the audience, in tears.
Jack Conte, one-half of the band Pomplamoose, talked about fear, performance anxiety, and his descent into robot-making madness, and how it inspired him to build Patreon. “I’m going to try to give you the story we don’t usually give people, because I think that’s right for this space.”
Pinboard’s Maciej Cegłowski strip-mined Walden for Tim Ferriss-style lifehacks in his funny, thoughtful talk about “living a life outside the margins of the ordinary.” Eat the donuts.
That’s a great start, but it’s really just scratching the surface.
Cards Against Humanity’s Max Temkin introduced a recurring theme of impostor syndrome, capped by a surprise performance by the Doubleclicks. Chris Anderson talked about how weaponizing Lego led to running a drone factory in Tijuana, before walking attendees outside and flying one over the urban goat field across the street (yes, really). Vi Hart spontaneously performed a fractal song on-stage with a human capo pulled from the audience, and Adrian Holovaty played the song that built his YouTube career. So good.
Back to back, in one block, we had Ill Doctrine’s Jay Smooth sharing stories of how inclusivity pays long-term dividends, Breadpig’s Christina Xu talking about building support structures for indies, and a whirlwind animated GIF-filled talk from Idea Channel’s Mike Rugnetta about how online communities form self-identity that connected furries to Nightvale. Yep.
We brought together all four founding editors of Boing Boing for the first time ever on a single stage. Molly Crabapple gave a starkly cautionary talk about how the network and platforms we rely on can oppress us, contrasted immediately afterwards with a talk by the creator of several of those platforms, Evan Williams, who gave his first solo talk in years, telling his own origin story and where he thinks the Internet is going. Marco Arment used XOXO as a therapy session, talked about his fears, and revealed his newest project. Ouya’s Julie Uhrman gave an emotional talk about making mistakes and moving on.
We had pioneers in their respective genres talking about how they stayed independent—Tim Schafer on videogames, Erika Moen on comics, Jonathan Coulton on music, Jack Cheng on self-publishing his first novel.
So, yeah. I thought the talks last year were great, but this was just another level. Something about the environment and the crowd caused speakers to open themselves up a bit more than usual, talk about their own personal struggles, make themselves vulnerable. It all just worked.
Several attendees artfully captured their own moments from the festival:
Instagram designer Maykel Loomans shot gorgeous portraits of XOXO attendees using a Hasselblad 503CX.
I don’t normally love sketchnotes, but Jason Alderman’s illustrations are some of the best I’ve seen, capturing every speaker from XOXO with concise notes and clean lines.
Eddie Codel shot incredible footage around the festival and high above Portland with a GoPro Hero3 camera hanging from his DJI Phantom quadcopter drone.
One of my favorite projects to come out of XOXO was led by the Kickstarter team, who ran a lab in the garage of the YU with workshops and talks over the three days. They launched a project to design, print, bind, and distribute a book in three days, compiled entirely from attendee contributions. Each backer designed a single page in the book, and received a finished copy at the closing party. The result was a wonderful memento of the festival, including a letter from Andy McMillan’s mom that I read on-stage during the closing. You can read the PDF here.
There were so many great moments, and reading the reactions, it seems like everybody had their own favorites. I’d love to hear yours, and always, what we can do better.
For an event of our size, it feels like XOXO generates a disproportionate amount of coverage. We only had 700 attendees, including all speakers and volunteers, but it feels like everyone has something to add to the event.
Of course, there’s a ton of real-time activity on Twitter and Instagram during the festival. (Seen.co did a great job of capturing most of it.) But the best part, for me, was reading everyone long-form reactions on podcasts and blog posts that came afterwards, as people digested what they experienced.
Here are some of my favorites.
Frank Chimero, “The Inferno of Independence”
“Once the work is done, it’s not yours anymore. You draw the comic, write the book, make the app, and then it makes its way out into the world. And it starts to talk back to you. It’s the weirdest thing—if the thing you make goes anywhere, it’s because other people carried it. Your thing becomes our thing. This is deeply unsettling, but it is also a beautiful situation that binds us to one another. So much for independence. It’s a false dream. What we really have is co-dependence, and what we desire when we speak of independence is equity and autonomy. Those are our goals.”
Glenn Fleishman, “In a Time of Hugs and Kisses”
“XOXO is a way to take our heart out of our body for a few days, share it, and know it will be cared for before we return it to its cage.”
David Wertheimer, “Xoxo, XOXO”
“Few events provide so many diverse activities in one location, from morning past midnight. And fewer still create an environment of friendship and openness like XOXO. Everything was participatory,from sitting in a random seat for the talks to pulling up a chair for a game or a meal. Strangers—many of them introverts—readily introduced themselves to one another.Old relationships were rekindled, new friendships were made. Impromptu invitations to meals and drinks abounded, both in person and on Twitter. XOXO’s openness made it hard to feel left out, and harder still to not have fun.”
Nick Sweeney, “The Making of Makers”
“It celebrated the creativity and dedication of its speakers, and served as a glorious advertisement for Portland’s idiosyncratic urban vision. It connected and reconnected me with people who have been touchstones throughout my (long) time messing around with the web, educated me with every impromptu conversation, and mainlined hope and wonder and energy and engagement. A glow emanated across the web from everyone who attended, and the after-party discussions focused around two questions: ‘what’s next?’ and ‘how can I contribute to it?’ — not because there’s a pot of gold to be found, but because those contributions will build better things for everyone.”
Gordon Luk, “Thoughts about XOXO Fest”
XOXO Fest is perhaps a slow and fragile antidote to the damage that subordinating creativity to commercialism has wreaked on the people who make stuff. The worst damage isn’t the stuff you can see – the giant corporate-sponsored party tents and club rentals, the talks full of startup product pitches, the constant Q&A sessions full of self-promotional grandstanding. It’s the prejudices built up against introducing ourselves to strangers, as we’ve gotten into a default mode that we can’t trust anyone that we meet at these gatherings to actually be kindred spirits.
Jon Bell, “XOXO is Reproducible”
“XOXO without creative people boldly talking to each other about their passion would be Just Another Industry Conference. The fact that it wasn’t can be traced largely to Andy’s pep talk, and to each and everyone, myself included, that found the nerve to talk to their fellow attendees.”
Dan Hon, “Hugs and Kisses”
“Outside the context of the conference, it feels a bit trite or, well, Californian-west-coast-Group-Hug-let’s-all-cry-it-out, but what started to emerge was the recognition that it’s not easy to stand up for what you believe in. And that it’s OK to not be strong enough, certainly not all the time. Which is why, I think, what felt powerful about XOXO was a whole bunch of people, whether they were speakers or attendees who could look at each other and say: I’ve been through something like that.”
Many more: Jacob Kaplan-Moss, Simon Carless, Ben Werdmuller, Jon Hrach, Chase Reeves, Ariel Meadow-Stallings, Alli Dryer, Simon Batistoni, Winston Hearn, Kristin Wille, David Stewart, Patrick Berry, Whit Scott, David McCreath, Rob Pegoraro, Jon Lax, Rachael Schafer, John Biehler, Cooper McHatton, David Wheeler, Dan Bruno, Lance Arthur, Craig Winslow, Liza Daly.
Thanks to all of you, we loved reading every one of these. Let me know if there were any I missed in the comments.
I’m not a fan of cynicism, snark, or knee-jerk contrarianism, and I think XOXO is proving to be a safe haven away from that. But thoughtful criticism is vitally important and always, always welcome, so I was happy to see several in-depth pieces that talked at length about ways XOXO could be better.
Leah Reich, “The Uncanny Valley of Earnestness”
“The Uncanny Valley of Earnestness is a place in between blindly shoring each other up and tearing each other down. This is the place where you give yourself the chance to be weirdly human and you try, with all your might, to give that chance to someone else. You will fail, on both an individual level and in big groups, and so will everyone else, but you will try again.”
Anil Dash, “XOXO and Reckoning with Nice”
“XOXO matters, for being a place that can bring such great minds together. Now it needs to open up, to a more truly diverse (not just race and class and gender, but self-criticism) audience, in order to achieve the truly profound and great social goals that it could enable. It’s the highest praise I can offer that I think XOXO may be able to do so.”
Greg Knauss, “Talking About Failure”
“We cannot be whole unless we acknowledge, discuss and internalize the sometimes shattering consequences of taking a leap and plummeting straight into the ground. We’ve got the conversation about success down pretty well — probably too well, in fact, to where the topic almost automatically evokes the standard storyline of passion, struggle, victory. But until we can talk just as freely about failure, the story of indie culture remains a Disneyfied fairy tale — based on reality, but without the occasionally ugly ending.”
No matter how well you prepare, things will go wrong. On Saturday, the wind and rain flares up, whipping tarps off the windows, spilling raindrops onto attendees, and knocking a window out inches from an attendee below. An attendee loses balance playing JS Joust and shatters a window. A homeless dude is creeping out attendees while they eat lunch at the carts.
Those are easy problems. Climb up on the roof and tear the tarps down. Clean up the glass and replace the windows. Buy the guy lunch, walk him down the street.
And then there are hard problems.
On Friday afternoon, at a party downtown, one of our volunteers was sexually harassed by a drunken attendee. He made deeply offensive comments to her, in front of others, and she was shaken.
Andy and I had talked about this possibility, and what we might do if it ever happened. I’m glad we did.
As soon as we heard about it, we asked our volunteer for full details in a private place. We immediately contacted the attendee, confronted him privately, and immediately took his badge when he confirmed the details. We told our volunteer what happened, and thanked her for bringing it to us.
The next morning, we talked on-stage about what happened and reiterated again how important it was to us that XOXO remains a safe and comfortable environment.
To us, this felt as natural as fixing a broken window. There was a clear, obvious problem with only one reasonable solution. Was it fun? No, it sucked. But it’s amazing how many events seem to get this very simple thing wrong, and it gave us a good opportunity to show how we’re different.
The volunteer that was harassed, Kelly Kend, wrote about her experience in detail. I’m more proud of this post-XOXO writeup than any other.
“I have heard many of attendees of XOXO talk about how thankful they were to be there, and I am too. I never thought I would be the asshole who walks away from being sexually harassed thinking it was a net positive, but experiencing that resolution was an amazing gift for my creativity. The Andys didn’t just send me the message that it’s ok for me to be at their event, they sent the message that it’s ok for me to be on the internet. As I keep talking and making, I’m sure to find people who are going to want to tear me down, but now I also have that moment of glorious confusion when I realized that without knowing anything about me, these two guys had my back. It was perhaps a dark serendipity that brought me to that place, but a profound one nonetheless. I can’t really explain it, but am extremely grateful for it. Hugs and kisses.”
Before you ask—we don’t know if there will be another XOXO. Andy is finishing the fifth and final Build in Belfast as I write this, and when things have settled, we’ll talk.
Like we said at the closing, it all hinges on whether we can keep things interesting, and if it’s actually making an impact. If it led you to make new things, build new friendships, and do something you love independently, awesome. Tell us about it and maybe we’ll do it again.
Thanks to the speakers and musicians and game designers and filmmakers who made it interesting, the patrons who helped make it happen, and to every one of you who showed up, wrote, wondered, played, laughed, cried, kept us guessing, and made us proud.
Photo by @mayli