United States: (You Gotta) Fight For Your Right (To Enforce Your Copyrights!)

Last Updated: February 9 2015
Article by Nicole Kinsley

The Beastie Boys can look back on 2014 as a year of good copyright outcomes. The preceding years had seen their music used without authorization in two promotional videos, by Goldieblox and Monster Energy, despite the surviving members' commitment to honor the wishes of Adam Yauch, known as MCA, that Beastie Boys music not be used in commercial advertisements. The remaining band members, Adam Horowitz and Michael Diamond, decided to Make Some Noise about both unauthorized uses and, in 2014, saw the resulting legal disputes favorably resolved.


In 2013, Goldieblox, a start-up toy company that aims to interest young girls in engineering, posted a clever video online. The video depicted young girls constructing a Rube Goldberg contraption using Goldieblox products and repurposed traditional "girl" toys. The video was accompanied by the Beastie Boys' oh-so-catchy song Girls, also repurposed. The original lyrics of Girls are a humorous mess of (arguably satirical) misogynist stereotypes that read like a bratty six-year-old boy's understanding of what girls are and should be: "Girls to do the dishes; girls to clean up my room..." Goldieblox rewrote the lyrics to be empowering: "Girls to build a spaceship; girls to code a new app..."

The video went viral, and came to the Beastie Boys' attention. The group wrote a letter to Goldieblox, expressing their support for Goldieblox's mission, but explaining their decision not to license their music for any advertisements. Goldieblox responded with a declaratory judgment lawsuit, asking a judge to find that their video constituted a fair-use parody of Girls, because it criticized the sexist nature of the original lyrics. The Beastie Boys countersued for copyright infringement and violation of the Lanham Act.

It would have been interesting to watch this dispute play out. Courts use a balancing test to identify protected fair use: the parodic nature of the video would have weighed heavily in GoldieBlox's favor, while the commercial aspect would have weighed heavily for the Beastie Boys. Instead, Goldieblox decided that this wasn't the Time to Get Ill, and the case settled in May 2014. Goldieblox (begrudgingly) posted an apology on its website, and, in a move that meant everybody wins, agreed to pay a portion of its proceeds to a charity of the Beastie Boys' choice that supports science, technology, engineering, and math education for girls.


The day after Adam Yauch passed away, in May 2012, Monster Energy Drink held its annual "Ruckus in the Rockies" snowboarding competition. A DJ known as Z-Trip performed at the after-party, and played some Beasties Boys music, including his own authorized remix of several of their songs. Afterwards, Nelson Phillips, a Monster employee, produced a four-minute recap video set to Z-Trip's Beastie Boys All-Access Megamix, which includes five Beastie Boys songs. The video, which was replete with Monster branding, included "ALL-ACCESS BEASTIE BOYS MEGA MIX COURTESY OF Z-TRIP" in its credits, and ended with the memorial text: "RIP MCA."

When Monster posted the video online, the Beastie Boys sued, alleging infringement of their copyrights in the songs, and violation of the Lanham Act by creating the false impression that the Beastie Boys had endorsed Monster.

Monster's first response was to Pass the Mic. Monster filed a third-party complaint against Z-Trip, claiming that he led Phillips to believe he had the legal authority to license use of the Megamix, and that he was providing such a license to Monster. These claims were based on a short conversation between Phillips and Z-Trip in the green room before Z-Trip's performance at the Ruckus, and an email exchange where Z-Trip viewed the video before it was posted and proclaimed it "Dope!" Phillips and Z-Trip gave very different accounts of the green room conversation, and the email exchange didn't contain any explicit discussion of licensing the rights to the Beastie Boys' songs.

Monster's third-party claims against Z-Trip were dismissed at summary judgment. Judge Engelmayer of the Southern District of New York made it abundantly clear that a large corporation like Monster should never have entrusted Phillips, who had no training or experience with copyright licensing, with producing content for the company without proper oversight. Whether or not Phillips thought he had the permissions he needed, someone at Monster should have thought to Ch-Check It Out. Instead, the video only went through one round of review before posting – and this round merely involved another employee checking that it "fit with the Monster Energy brand."

Without the "blame Z-Trip" option, Monster admitted liability for copyright infringement. At the trial last summer, the jury therefore only had to consider the Beastie Boys' false endorsement claim and damages. The jury found that Monster's infringement was willful, and that it intentionally deceived consumers into believing the Beastie Boys endorsed Monster, and awarded damages of $1.7 million. Monster moved for the judge to overturn the verdict or grant it a new trial, but Judge Engelmayer denied the motion: Monster was just going to have to Deal With It.

But $1.7 million may not be the end of the story. This month, the Beastie Boys are back in court, asking that the judge require Monster to pay at least some of its legal fees. Universal Music has also sued Monster for infringement of its share of the rights in the same songs. These cases serve as an important reminder that companies both large and small need to navigate carefully in producing online content. Potential infringers would be wise to remember that the Beastie Boys Don't Play No Game That [they] Can't Win.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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