Potential Sabotage: Is that What’cha Want?

Potential Sabotage: Is that What’cha Want?

Michael "Mike D" Diamond, Adam "Ad-Rock" Horovitz and the estate of the recently deceased Adam "MCA" Yauch (“the Beastie Boys”) have launched an action against Monster Energy Drink (hereafter “Monster”) for the use of approximately 3 minutes of their music in a video promoting the “Ruckus in the Rockies” event.

The video advertising the event, which is sponsored by Monster, featured the group’s name as well as samples from the songs "Sabotage," "So Whatcha Want" and "Looking Down the Barrel of a Gun". The suit against Monster will ask the court not only for an injunction but also damages in the amount of $150,000 for each infringment.  Since Monster apparently did not get permission to use the band’s name or music, the legal basis for the suit appears to be straightforward. 

However, it was also discovered that the late Adam Yauch handwrote an addition to his will stating the following: "In no event may my image or name or any music or any artistic property created by me be used for advertising purposes".  Apart from whether or not this addition to Mr. Yauch’s will is actually a valid addition, it creates a variety of complexities when it comes to copyright law.

The most obvious complexity is that Mr. Yauch can only restrict the use of copyrighted works for which he is the copyright owner.  If we take the current lawsuit as an example, Monster is accused of violating copyright in the music of the Beastie Boys.  Unfortunately, Yauch is only a joint author along with the other members of the Beastie Boys when it comes to the music used by Monster.  The issue then becomes how to separate Yauch’s section of the work from that of the other members of the group.  Fortunately, in the current case, this issue is about Monster using the band’s work without getting a license from any of the copyright holders.  Therefore, the living members of the Beastie Boys have a good reason to support the claim that the Yauch estate has for infringement of copyright.

However, what if the living members of the band decide to license their band’s music for use in advertising?  Normally the Yauch estate would benefit financially from the licensing agreement and there would be no reason for them to object.  As it stands now, with the addition to the will, the executor of the estate might be legally bound to try and prevent any advertising deal from being reached.  It is possible that the other band members will try to honour Mr. Yauch’s request in his will out of respect for him and avoid ever licensing use of their music in any advertising.  However, if they did license their music for advertising, and the matter actually went to trial, the executor of the Yauch estate might find that last written instruction to be unenforceable in the American legal system. 

In Canada however, trying to enforce Mr. Yauch’s wishes might not be as hard as it is in America.  In Canada, authors have a separate moral right which comes from section 28.2(1) (b) of the Copyright Act, and is commonly known as the “Right of Association”.  Essentially, an author, regardless of signing away economic rights in a work still retains the right to object to the work being “used in association with a product, service, cause or institution” and can prevent the work from being associated with any product.  Therefore in Canada the Yauch estate might have an easier time arguing that no Beastie Boys song should ever be used in any advertising, because that was clearly the wish of Adam Yauch before he died.

Fortunately for the rest of the Beastie Boys, the current lawsuit is based upon a use to which they all object, and therefore the legal ramifications of Mr. Yauch’s will does not need to come into issue.  In the future however, the living Beastie Boy members might find Yauch’s will to be a minor hindrance when trying to license their music to advertisers.

Adam Stevenson is a J.D. candidate at Western University