The Beastie Boys recently won a $1.7 million jury verdict against energy drink maker Monster Energy for copyright infringement and false endorsement arising out of Monster's unauthorized use of their music in a marketing video. In December, a federal district court denied Monster's motions for judgment as a matter of law, for a new trial and for a reduction in damages (Beastie Boys v. Monster Energy Company, (S.D.N.Y. Dec. 4, 2014)).

In 2012, Monster created and distributed a promotional video that referenced the Beastie Boys and used portions of their songs in the video's soundtrack. The video used a megamix of five Beastie Boys' songs originally created by disc jockey Zach Sciacca, who performs under the name Z-Trip. In 2011, the Beastie Boys authorized Z-Trip to create the megamix to promote an upcoming Beastie Boys' album. Z-Trip was authorized to offer the remix for free as a promotional item but did not have the right to sell or license the remix or authorize third-party use. Monster did not get permission from the Beastie Boys or their management to use their music in the video. However, at trial, Monster's regional marketing director, Nelson Phillips, testified that he believed Z-Trip had orally authorized Phillips to use the megamix in Monster's promotional video during an event afterparty and in a short e-mail exchange in which he sent the video to Z-Trip for approval and Z-Trip responded "Dope!" A second marketing employee also reviewed the video before it was posted but failed to consider whether necessary music rights had been secured. After Monster posted the video on its website, YouTube channel and Facebook page, the Beastie Boys filed suit for copyright infringement and false endorsement. Shortly before trial, Monster conceded liability for copyright infringement. On the copyright claims, the jury found the infringement willful and offered alternative awards in the following amounts:

On the Lanham Act claims, the jury awarded $500,000, finding that:

In its December opinion denying Monster's post-trial motions, the court concluded that, in determining whether there was reckless disregard for purposes of willful copyright infringement, the jury could fairly take into account both Monster's:

The result in this case underscores the need for companies and their counsel to conduct appropriate rights clearances and get necessary licenses before using third-party content and trademarks in marketing campaigns, particularly given the ease with which employees can post videos and other content to social media. Companies should also ensure appropriate training and guidance on rights clearance for their employees.

For a detailed list of issues to consider when clearing intellectual property and personal rights in marketing and other materials, see Rights Clearance Checklist. This Checklist identifies the main intellectual property and personal rights clearances that may be necessary when creating or using works that may qualify for copyright, trademark and other intellectual property and personal rights protections.

Clearing rights is music can be particularly challenging for companies because which rights are needed, who controls the licensing of those rights and the costs and other terms of the license all vary depending on how the music is being used. For more information, see Practice Note, Music Licensing. This Practice Note addresses the practical aspects of music licensing in the US, including: