Pass the mic, but don’t pass on the copyright

After Monster Energy used a Beastie Boys compilation video without permission, the rap group was ready to make some noise

The case, Beastie Boys v. Monster Energy, is a cautionary tale for those who believe they can freely use anything they find on the Internet for their business.

The Internet is not simply a Creative Commons, but it is a medium where a great deal of commerce is conducted. The goal of this article is to provide businesspeople with some tips on avoiding potential copyright disputes, especially in the Internet age.

In 2012, Monster Energy used a compilation of five Beastie Boys songs for a promotional ad. The video was used to promote a snowboarding event called, "Ruckus in the Rockies.” Monster Energy found the Beastie Boys’ video on a DJ’s website. The DJ, Z-Trip, had been given permission by the Beastie Boys in 2011 to make the video compilation and to provide a free link on his website so his fans could download the video.

Z-Trip was not granted the authority to sell or license the use of the video to anyone else and he did not attempt to do so in this case.

It is important to remember that copyright is a bundle of rights, including the right to copy, the right to distribute, the right to publicly perform or display the work, and the right to create derivative works. All of these rights can be assigned or licensed individually, or as a whole.

Copyright can also be layered. This is especially true in the music context. For example, a music video often involves several copyrights (the lyrics, the musical composition, the musical recording and the video arrangement). In this case, the copyright in Z-Trip’s video was not only owned by the Beastie Boys, but the sound recordings were co-owned by Capitol Records, and the musical compositions were co-owned by Universal-Polygram.

The late Adam Yauch, better known as MCA to Beastie Boys fans, was one of the founding members of the group, and he died of cancer the day before Monster’s snowboarding event. It is well known that the Beastie Boys have long railed against the commercial machine. In fact, MCA left clear instructions in his will that his music was never to be used for advertising.

In this case, the court found that while Monster Energy had a policy of rigorously policing and protecting its own intellectual property rights, it used Z-Trip’s video with the phrase “RIP MCA” added to it without ever approaching the Beastie Boys, or any of the other rights holders, for permission.

Marketing initiatives

Because of Monster Energy’s willful copyright infringement and false endorsement, the Beastie Boys were awarded $1.7 million in damages in 2014. The companion case between Monster Energy and Universal-Polygram and Capitol Records is still pending.

The Beastie Boys recently filed for a permanent injunction to stop any further use of the video by Monster. They are also seeking an additional $2.4 million to cover their attorneys’ fees and costs because Monster Energy’s actions were found to be willful, which warrants enhanced damages.

As this case demonstrates, it is wise to ensure that your business has all the necessary permissions before using another’s work, whether in an advertisement, a promotion or otherwise.

Because copyright in a work lasts for such a long time (the life of the author plus 70 years) it can be difficult to track down the owner of the rights you are seeking. However, that difficulty is no excuse for unauthorized use, and diligence is no defense to copyright infringement.

Not only can the damages in an infringement case be devastating to your business, but the publicity surrounding an unauthorized use can create problems for your company well beyond costly legal battles.

We all know that online marketing is incredibly powerful. However, unsophisticated online marketing can also create serious risks. A business should consider having a policy that employees and vendors can refer to regarding intellectual property capture (to protect the business’s intellectual property assets) and clearance (to promote strategic content sourcing and to protect the business from costly disputes).

When considering a new marketing initiative, a business will generally need to clear content (i.e. get permission to use another’s work) or the organization will need to have content created for the project.

Whether the content is created by an employee or by a third party should also be considered. It is generally recommended that agreements regarding the creation or commissioning of a work be in writing.

Attorney Kimberly A.W. Peaslee of Upton & Hatfield, Concord, focuses her practice on all forms of intellectual property protection, monetization, and enforcement. She can be reached at kpeaslee@uptonhatfield.com.