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for the Southern District of New York

Court Dismisses Third Party Claim Seeking to Shift Blame for Copyright Infringement

In a November 4, 2013 ruling, Judge Paul A. Engelmayer granted summary judgment dismissing with prejudice the third party complaint of defendant Monster Energy Company against a disk jockey known as "Z-Trip" arising from The Beastie Boys' copyright infringement and Lanham Act claims against Monster Energy over a remix made by Z-Trip that included four Beastie Boys songs and that Monster Energy used in a promotional video.  The Beastie Boys sued Monster Energy for copyright infringement and a Lanham Act violation, and Monster Energy asserted a third party claim against Z-Trip for breach of contract and fraud in falsely representing that Z-Trip and Monster Energy had permission to use the Beastie Boys songs.

The underlying facts, briefly, are as follows:  In connection with their promotion of an upcoming album, the Beastie Boys authorized Z-Trip to make a Megamix of their older music, and to post it on his website for free download.  Monster Energy later hired Z-Trip to DJ at an event sponsored by Monster Energy, and recorded the event for a promotional video.  There were some brief conversations and email exchanges between a Monster employee and Z-Trip about what music Monster Energy could use for the video.  Z-Trip suggested the Beastie Boy Megamix, which was available for free download, but there was no discussion about permission or clearance to use the music.  The Monster Energy employee assumed from the mention of the free download that the Megamix was available for use in Monster Energy's promotional video.

Judge Engelmayer reviewed the scant record evidence about Monster Energy's claimed contract with Z-Trip to use the Beastie Boys music, and found that there was insufficient evidence to show any of an offer, acceptance, consideration or sufficiently definite terms.  The Court wrote that the evidence "in multiple respects . . . precludes finding a contract between Monster and Z-Trip."  Judge Engelmayer took an even dimmer view of Monster Energy's fraud claim, finding it to be "risible."  The Court noted that the Monster Energy employee's communications with Z-Trip supposedly giving rise to the fraud "are instead consistent at best with a miscommunication."  Quoting the Beastie Boys, the Court noted that "Z-Trip can now, therefore, rest a least 'as cool as a cucumber in a bowl of hot sauce,' because Monster's Third Party Complaint against him has 'got the rhyme and reason but no cause.'"
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