• “Dope” Is Not Language of Acceptance

    by  • November 8, 2013 • copyright • 3 Comments

    You probably don’t need to be told this, but just in case you had any doubt: “dope!” is not “clear, unambiguous and unequivocal” acceptance of an offer as required under New York law. The court didn’t say it categorically, but I’m going out on a limb here and say no matter what the context, an answer like that probably deserves a follow-up, something like “when you say ‘dope!,’ are you giving me a license to use the copyright, or were you just referring to your right of publicity?”

    The case, Beastie Boys v. Monster Energy Co., isn’t really that interesting from a substantive law perspective, but it’s huge fun as a what-could-they-have-been-thinking case. Sorry Monster — but then, you did choose to litigate it.

    In 2012 Monster Energy sponsored a snowboarding competition called “Ruckus in the Rockies.” The event was organized by Nelson Phillips, director of marketing for Monster’s Canadian business unit. The court pointed out a number of times that Phillips wasn’t the most legally sophisticated; he “completed one semester of college” and was “a former forestry and ski-industry worker with no evident legal expertise.”

    The event included an after-party where DJs, including defendant Z-Trip, performed. Z-Trip had a history with the Beastie Boys; they had once hired him to create a remix, the “Megamix,” of Beastie Boys’ songs that fans could download for free.

    Monster created a video of the Ruckus in the Rockies. Phillips verbally asked Z-Trip if Z-Trip had any music Monster could use for it. Z-Trip said the Megamix was on his website and could be downloaded for free. Monster used the Megamix in the video and Phillips showed it to Z-Trip with this exchange:

    Hey Zach,
    Please have a look at the video from this past weekend and let me know if you approve. (I think we’ll remove the logo[ ]s at the end since they’re redundant and the rest will get cleaned up just a little bit more.)
    Thanks again for an amazing weekend!!
    Once you approve, we’ll post on youtube and notify our 16M fans on fb [Facebook]. the password is: ruckus
    http://vimeo.com/41825355

    Z–Trip replied:

    Dope!
    Maybe at the end when you put up the info about my Beasties mix, you could post below it “Download the mix for free at http://ztrip.bandcamp.com”
    That way people can pause it and go get it if they want … Also maybe a proper link on the description they can click thru once it’s posted proper?
    Dope though … Love the can at the end.
    No 45 footage?
    And, btw … Thanks again for everything … still high off the weekend! Z

    The video went up, Beastie Boys sued Monster for copyright infringement, and Monster third-party claimed against Z-Trip for breach of contract and fraud.

    (Beastie Boys music removed and replaced with music by the band Swollen Members.)

    This opinion is on Monster’s claims against Z-Trip. On the breach of contract claim, the court walked through offer, acceptance and consideration and, as you can imagine, couldn’t find any. Phillips and Z-Trip had four brief interactions about the music and none could be considered an offer of the rights Monster claimed it was getting, that is, “to reproduce, for its own commercial purposes, including on various websites, the original recordings and songs of the Beastie Boys contained on the Megamix.”

    If there’s no offer then there can be no acceptance. But even assuming there was an offer, “Dope!” is too ambiguous to be an acceptance:

    In proper context, the word “Dope!” could certainly be taken as an expression, albeit unorthodox, of approval and acceptance of another’s antecedent offer. But here, Z–Trip’s exclamation, “Dope!” was in response to Phillips’s query, “Please have a look at the video from this past weekend and let me know if you approve.” Viewed in this context, Z–Trip’s response of “Dope!” plainly communicated that, in some sense, he “approve[d]” of “the video.” But such approval is quite distinct from conveying assent to a mutual exchange of promises or other consideration. And it certainly did not convey that Z–Trip had authority to approve, on behalf of the Beastie Boys, a free license to Monster to use the Beastie Boys’ recordings and songs. There is no fair reading of the facts under which Z–Trip, by exclaiming “Dope!,” accepted such a contractual offer.

    Leaving no chance that the decision could be reversed, the court also found there was no consideration. I’m sorry to report that the court didn’t discuss apparent authority — I’m curious what Monster claims the Beastie Boys did to suggest Z-Trip had authority to license their music.

    So Monster lost the breach of contract claim. But Monster also had the temerity to accuse Z-Trip of fraud, for failing to disclose the fact that he didn’t have the authority to license the Beastie Boys tracks. The court didn’t see it the same way:

    Viewed in light of the factual record assembled in discovery, Monster’s claim of fraud is risible…. Viewed charitably to Phillips, his assembled communications with Z–Trip are instead consistent at best with a miscommunication. Phillips did not make at all clear to Z–Trip, and Z-Trip plainly did not appreciate that Phillips might not be aware, that Monster needed certain licenses in connection with its creation and intended use of the promotional video. Nor did Phillips make clear to Z–Trip that Monster believed that Z–Trip had authority to convey such licenses on the Beastie Boys’ behalf, and that he had done so by his idiomatic shorthand “Dope!” Alternatively viewed, Monster’s decision to delegate to Phillips alone the responsibility by which Monster was to acquire, for commercial exploitation, various intellectual rights presumptively belonging to an iconic band was reckless. On the record before the Court, Monster had no business entrusting such matters to Phillips. It is, in fact, quite unseemly for Monster, rather than taking responsibility for its own lack of care, to argue now that any liability it may have to the Beastie Boys in copyright was somehow a product of a fraud perpetrated by a disk jockey, Z–Trip.

    Phillips, being apparently uninformed about copyright and the need for appropriate licensure, conceivably may have believed, after his brief exchanges with Z–Trip, that all was well. But that is not the pertinent inquiry. The standard for reasonable reliance is not measured by the effect on an employee with no apparent qualifications to negotiate complex matters of licensing and copyright law. The two conversations and one email exchange between the two men—short, casual, and vague—did not supply a reasonable basis on which Monster, a major corporation, could conclude that it had obtained the necessary license to make use for its own purposes of the Beastie Boys’ original recordings. Monster has not made any credible argument why it was reasonable to rely on Z–Trip’s colloquialisms as a basis to conclude it had obtained from him the necessary licenses.

    That’s the flavor; not surprisingly, all throughout the opinion the court was quite clear it is not altogether enchanted with Monster’s behavior.

    Beastie Boys v. Monster Energy Co., No. 12 Civ. 6065 (PAE) (S.D.N.Y. Nov. 4, 2013).

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    3 Responses to “Dope” Is Not Language of Acceptance

    1. Alex
      November 9, 2013 at 1:23 pm

      The more I read about Monster Energy Co. in the courts (including TTAB) for IP matters, the less impressed I become about the handling of their legal affairs, at least for IP. BTW, Monster Energy is not the same as the Monster cable (hardware) company, is it? I confuse the 2, though I believe both are unreasonably aggressive about their IP protection (of course, that would be ironic if Monster Energy and Monster cable are 2 separate companies).

      Maybe that term “dope” has a clearer meaning to people who understand rap music or “Jive.” Is that the name of that language? That’s what I recall it was called in the old Airplane movies but that might show how old I am.

    2. Pamela Chestek
      November 9, 2013 at 2:06 pm

      As far as I know, Monster Energy and Monster Cable are different companies (as is Monster.com, the employment website). And the fact that I’m not sure which one is the overly aggressive one is a good demonstration of why co-existence may not be a good idea, even in widely different fields. You’re always in each others’ shadow.

      • Alex
        November 11, 2013 at 10:58 am

        That’s a good point. While the same mark in widely different fields is not ideal, it is fairly common and would not be a problem for these Monster companies if they could contain their enforcement efforts to what really is confusingly similar because it covers the same or sufficiently related goods. Alternatively, they need to select a more distinctive mark and promote it to death so they can claim it is famous.

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