Monster Energy Drinks contended that receiving “dope” in an email constituted permission to use a Beastie Boy master mix. A federal court in New York thought otherwise.
Here’s the background: Zach Sciacca, know as DJ “Z-Trip,” created a master mix of Beastie Boys songs and made it available on his website for free download. DJ Z Trip had permission to publish this master mix. Monster is known for using hip-hop music and celebrities to market their product.
In 2012, Monster reached out to DJ Z-Trip to request a song for a new promotional video. DJ Z-Trip sent them to his website to download the master mix of Beastie Boy songs he created. Monster then sent DJ Z Trip the video it created, which included the master mix; he responded “Dope.”
So when Beastie Boys sued Monster for copyright infringement, the company sued DJ Z trip for fraudulently representing he had rights to provide permission to let Monster use the song.
DJ Z Trip’s response to Monster? He asserted that “as a matter of law, he could not contract with Monster authorizing its use of the Beastie Boys recordings on his Megamix, because (1) he lacked apparent authority to issue a license for the Beastie Boys’ music and (2) his perfunctory exchanges with Phillips cannot be read to reflect agreement on material terms of such a license.”
He sought summary judgment of the complaint against him “…because, inter alia, a reasonable person could not have believed that he had the authority to license the Beastie Boys’ music for use by Monster… .”
Could a reasonable person construe “Dope” — his reply — as authority to license? Well, besides being a synonym for someone stupid or illegal narcotics, the word can be a term of approval to those in hip-hop culture. Or was DJ Z Trip, in his reply, simply commenting on the video and nothing more?
Alas, for Monster, the court went old school: The judge scoured for elements taught to 1Ls, asking whether there was evidence of an offer, acceptance, consideration or bargaining. This turned up a different four letter term: Nope. So the judge found Monster’s argument lacked key components for a contract for a license and on Nov. 4, the court granted summary judgment for DJ Z Trip.
Besides reminding about perils and possibilities in fast but not deep electronic communication, such as emails, this case carries a caution about the use of colloquialisms in business dealings. Eric Goldmnan, on his blog, highlights other take-aways from this case: 1. Copyright infringement is strict liability 2. Forming a contract should be a ticker-tape parade 3. Every word matters to contract law and 4. Don’t blame your business partners for your mistakes.