Mountain Law: Judge says Monster Energy is illin‘ over use of Beastie Boys songs
January 31, 2014
I was surprised recently when my young niece asked what the word "dope" means. However, I was relieved to find that she was asking, not because of Colorado's new green economy, but because she heard the phrase "don't be a dope, wait for the rope," meaning that she should not raise the bar on the chairlift until she reached the rope before the lift station. Funny enough, it turns out that even adults can be unclear about the meaning of the word "dope," and with real legal consequences, as I will explain.
In 2012, energy-drink maker Monster Energy sponsored a snowboarding competition in Canada called "Ruckus in the Rockies." Monster hired a DJ known as Z-Trip to perform at an after-party for the event. Back in 2009, Z-Trip had been hired by the famous hip-hop group the Beastie Boys to create a remix of their songs to promote their upcoming album, "Hot Sauce Committee, Part Two." The remix became known as the "Megamix." Fans were allowed to download the Megamix for free on Z-Trip's website.
The legal trouble began when Monster used the Megamix as background music for a Ruckus in the Rockies promotional video, which it released on its YouTube channel in May 2012. Monster had never contacted the Beastie Boys or any of their representatives to get permission to use the songs featured in the Megamix. The Beastie Boys' attorney sent Monster a cease and desist letter in June 2012, and Monster promptly removed the video from its YouTube channel and replaced the music on the video with music from the band Swollen Members.
Then, in August 2012, the Beastie Boys sued Monster, alleging, among other things, violations of their copyright to the songs featured in the Megamix. In response, Monster pointed the finger at Z-Trip and claimed, in essence, that he had given Monster permission to use the Beastie Boys' songs as featured in the Megamix and should be responsible for any violations.
Monster based its claims on a brief set of interactions between Z-Trip and one of its employees. The employee asked Z-Trip whether he had any music that could be used for a promotional video, and Z-Trip directed the employee to the Megamix. The employee told Z-Trip that he would not publish the video until Z-Trip was completely satisfied with it. The employee later sent Z-Trip a link to view the video on a secure website before it was released. Z-Trip replied, you guessed it, "Dope!"
From these exchanges, Monster's employee believed that the company had permission to use the Beastie Boys' songs as featured in the Megamix. In a decision issued in November 2013, a New York federal judge did not agree and threw out Monster's claims against Z-Trip.
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The judge noted that a valid contract requires an offer, an acceptance and the exchange of consideration (i.e., that each side gets something out of the deal). The court found that, even assuming Z-Trip's response — Dope! — could be construed as an acceptance, simply sending Z-Trip a sample of the video was not a sufficiently clear offer to form a contract (or for Monster to reasonably believe that it had licensed the songs from the Beastie Boys). Moreover, there was no consideration because Z-Trip did not stand to receive anything of value from the video.
The case shows that forming a contract requires more than fleeting verbal and email exchanges. A word like "dope" can have many meanings and Monster should have done a better job confirming the terms of any agreement and that it really did have permission to use the songs.
Noah Klug is owner of The Klug Law Firm LLC. Contact him at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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