After it got sued for using the Beastie Boys as the soundtrack to a promotional video without the band’s permission, energy drink maker Monster Energy Co. tried to shift the blame onto an unsuspecting DJ. That tactic didn’t sit well with U.S. District Judge Paul Engelmayer in Manhattan, who dismissed the DJ from the litigation on Monday.
In a 24-page ruling, Engelmayer threw out a third-party complaint Monster brought against Zach Sciacca (a.k.a. Z-Trip), a DJ known for mixing songs into so-called mash-ups. Monster alleged that the only reason it engaged in unauthorized use of the Beastie Boys’ music is that Sciacca fraudulently represented that he had authority to grant a license to the songs. Engelmayer called that claim “risible,” siding with DJ Z-Trip’s lawyers at Eisenberg Tanchum & Levy and the Beasties’ lawyers at Sheppard Mullin Richter & Hampton.
In 2012 Monster sponsored a snowboarding competition in Canada that included an after-party featuring Z-Trip. Monster made a video about its snowboarding festival and posted the video on YouTube. The soundtrack to the video was “MegaMix,” a remix of various Beasties Boys songs created by Z-Trip. The Beasties had approved of Z-Trip’s use of their songs. The band never signed off on Monster using the music in its video, however, and the company never sought the group’s permission.
A few weeks after uploading the video, Monster got a cease and desist letter for the Beastie Boys’ lawyers. Monster edited the video, replacing the soundtrack with music from a group called Swollen Members. That wasn’t good enough the Beastie Boys and Sheppard Mullin, who sued for copyright infringement and false advertising.
Monster responded by filing its third-party complaint against Z-Trip. In the complaint, Monster’s lawyers at Kane Kessler alleged that the company explicitly asked Z-Trip if he had “any music which would be permissible for Monster to use in connection with the creation of a soundtrack for the video.” According to Monster, “Z-Trip knowingly, intentionally, expressly and impliedly represented that it was permissible for Monster to use the content of, and the songs on, the Beastie Boys remix.”
After inspecting e-mails a Monster marketing employee exchanged with Z-Trip, Engelmayer found no merit to the company’s claim. “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,” the judge wrote. “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 disc jockey, Z-Trip.”