By FMC Policy Fellow Jordan Reth

The verdict is in—the Beastie Boys have won $1.7 million in damages from Monster Beverage Corp.

Back in August 2012, the band requested $2.5 million in damages for copyright infringement of several songs—along with false endorsement—all arising from a promotional video Monster made for a Canadian snowboarding event, “Ruckus in the Rockies.” While Monster conceded that it did infringe the Beastie Boys’ work, it claimed the infringement was an accident and that damages should only be around the $125,000 mark.

The suit centered on infringements of the songs “Sabotage,” “So What’cha Want,” “Make Some Noise” and “Looking Down the Barrel of a Gun,” all included in a video posted on Monster’s website. The company also featured a 23-minute medley of the Beastie tracks as a free MP3 download. The music in the video originally came from a live set by DJ Z-Trip at the aforementioned snowboard event.

As we pointed out in our analysis of the Beastie Boys/GoldieBlox kerfuffle, the use of group’s music in commercial advertisements is prohibited, as per the will of late Beastie Boy Adam Yauch.

While the ruling did feature plenty of copyright analysis, it also takes a few interesting turns. As Rolling Stone points out:

 A bulk of the opinion was spent on considering the legal definition of the word ‘dope’ and if it legally constituted a license for Monster to use the video. As the court noted, ‘In proper context, the word ‘Dope!’ could certainly be taken as an expression, albeit unorthodox, of approval and acceptance of another’s antecedent offer,’ the court said.

Often times, an infringement is pretty cut-and-dry, but there’s still the matter of determining how much money the infringer has to pay.

Calculating damages under the U.S. Copyright Act depends upon several considerations. Firstly, section 504(b) of the Act entitles the infringed copyright owner to “recover the actual damages suffered” as a result of the infringement, along with any related profits of the infringer (but not if there is overlap). The Second Circuit, where the case was tried, has stated that in calculating actual damages for copyright infringement, the amount cannot be based on “undue speculation.” When determining fair market values (e.g. licensing fees) is uncertain, there is an understanding that the calculation needs to focus on what the plaintiff’s profits would have been were it not for the infringement.[1]

Secondly, an infringed copyright owner may seek statutory damages rather than actual damages. The former are a pre-determined range mandated by Congress. A damage award can be between $750 -$30,000 for each instance of infringement. Furthermore, if the infringement is proven “willful” rather than a mistake, the maximum recoverable for each instance ratchets up to  $150,000.

In addition to copyright infringement, false endorsement is actionable under U.S. law.[2] Several high profile artists such as Tom Waits and Bette Midler have recovered damages for false endorsement claims.[3]

According to reports, the beverage company plans to appeal the $1.7 million reward. Given the Beastie Boys’ track record in the on matters of copyright, we’d advise Monster to “check your head.”