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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT of NEW YORK ------X : BEASTIE BOYS, Et Al., : : 12 Civ Case 1:12-cv-06065-PAE Document 90 Filed 03/18/14 Page 1 of 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------X : BEASTIE BOYS, et al., : : 12 Civ. 6065 (PAE) Plaintiffs, : : OPINION & ORDER -v- : : MONSTER ENERGY COMPANY, : : Defendant. : : ------------------------------------------------------------------------ X PAUL A. ENGELMAYER, District Judge: Trial in this case is scheduled to begin April 21, 2014. This decision resolves outstanding motions: (1) a motion in limine by defendant Monster Energy Company (“Monster”) to preclude plaintiffs (the “Beastie Boys”) from offering evidence of two sets of violations by Monster or athletes affiliated with Monster of the Beastie Boys’ copyright interests, which violations lie outside the scope of the allegations in this case, Dkt. 66; (2) a motion by the Beastie Boys for leave to file an Amended Complaint, Dkt. 72; and (3) a motion in limine by the Beastie Boys to preclude the expert testimony of Erich Joachimsthaler, whom Monster proposes to call, Dkt. 76. It also addresses certain other legal issues relevant to trial. By way of background, the Beastie Boys here bring claims of copyright infringement and of violations of the Lanham Act, 15 U.S.C. § 1051 et seq. These claims arise out of Monster’s allegedly unauthorized publication and dissemination, to promote the Monster brand, of a video promoting a Monster-sponsored snowboarding competition, the “Ruckus in the Rockies,” that used as its soundtrack a remix including four songs originally composed and recorded by the Beastie Boys (the “Video” or the “Ruckus in the Rockies Video”). The Court has issued two prior opinions in this matter. The first granted summary judgment to a third-party, disk jockey Case 1:12-cv-06065-PAE Document 90 Filed 03/18/14 Page 2 of 22 Zach Sciacca, or “Z-Trip,” against whom Monster had filed a third-party complaint, see Dkt. 51; the second resolved Monster’s motion in limine to preclude expert testimony of a witness whom the Beastie Boys proposed to call, see Dkt. 89. This decision assumes familiarity with the factual background and claims and defenses in this case, as well as those prior opinions. I. Monster’s Motion in Limine to Preclude Certain Videos The Beastie Boys propose to offer at trial evidence of two videos or sets of videos— apart from the Ruckus in the Rockies Video—that they claim infringed on their copyrights. The Beastie Boys claim that Monster is responsible for both sets of videos. On February 13, 2014, Monster filed a motion in limine, Dkt. 66, and an accompanying memorandum of law, Dkt. 68 (“Monster Limine Br.”), to preclude receipt of those videos at trial. On February 19, 2014, the Beastie Boys filed a memorandum of law in opposition. Dkt. 83 (“Beastie Limine Br.”). The first category of videos (the “Monster Army Videos”) were posted by athletes whom Monster has sponsored to a website, www.monsterarmy.com, that Monster created for the purposes of promoting these athletes and Monster itself. Beastie Limine Br. 3. Monster requires these sponsored athletes to maintain a profile on www.monsterarmy.com and encourages them to post videos; however, Monster itself does not create nor edit those videos. Id.; Monster Limine Br. 3. The Beastie Boys argue that six videos posted by such athletes synchronized the Beastie Boys’ music with footage of the athletes engaged in their respective sports, and that these videos did so without the required authorization from the Beastie Boys. Beastie Limine Br. 3–4. The other video at issue was created in connection with a sporting event in Switzerland called “Wheels Fest,” which Monster sponsored and promoted. Id. at 4. This video allegedly used a Beastie Boys song, “Sabotage,” as its soundtrack, without authorization. Id. The Beastie Boys do not allege that Monster created this video. They allege instead that Monster “was aware 2 Case 1:12-cv-06065-PAE Document 90 Filed 03/18/14 Page 3 of 22 of the Wheels Fest Video while it was being produced” and “participated in the production of the Wheels Fest Video.” Id. at 4–5. The Beastie Boys seek to offer the Monster Army Video and the Wheels Fest Video to help establish that Monster’s alleged infringement in relation to the Ruckus in the Rockies Video was willful, as opposed to being a product of negligence or of a good-faith but mistaken belief, based on communications between Monster employee Nelson Phillips and disk jockey Z-Trip, that it had a valid license to make such use of the Beastie Boys’ music. Id. at 5; see generally Dkt. 51 (granting summary judgment to Z-Trip against Monster’s Third-Party Complaint). The issue presented by Monster’s motion to preclude this evidence is whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion, or delay. See Fed. R. Evid. 403. The probative value of these other videos is, at best, very limited. The Beastie Boys do not explain convincingly why either of these other incidents sheds light on Monster’s state of mind in connection with the incident at issue here, in which it used Z-Trip’s Megamix (containing portions of five Beastie Boys’ songs) in the Ruckus in the Rockies Video and then disseminated that video without the Beastie Boys’ permission. Unlike the Ruckus in the Rockies Video, these other videos were not created by Monster. And there is no allegation that any Monster personnel implicated in this case played any role in these other incidents; that the unauthorized inclusion of Beastie Boys music in these other videos arose from similar control deficiencies within Monster; that Monster had a demonstrated policy or practice to use Beastie Boys (or other groups’) music to promote its products without regard to legality; or that Monster had a policy or practice of recklessly using others’ musical work to promote its products and then seeking to pawn off responsibility for any copyright violations on hapless others. On the facts 3 Case 1:12-cv-06065-PAE Document 90 Filed 03/18/14 Page 4 of 22 proffered to the Court, the episode involving the Ruckus in the Rockies appears to be an idiosyncratic, singular event, as do, for that matter, the episodes leading to the creation and posting of the other two videos or sets of videos. Even if there were some faint probative value in this case to the fact of other violations of Beastie Boys’ copyrights by Monster-affiliated persons or entities, the probative value of any such hypothetical violations would be dwarfed by the risk of unfair prejudice, confusion, and delay. There has been no prior adjudication of illegal conduct in connection with the other videos. To establish infringement in connection with those other episodes, let alone facts that might somehow tie Monster to them so as to support a claim of willfulness with regard to the Ruckus in the Rockies video, would therefore require the paradigmatic “trial within a trial” that Rule 403 disfavors. See, e.g., United States v. Aboumoussallem, 726 F.2d 906, 912 (2d Cir. 1984) (upholding exclusion of testimony to avoid “trial within a trial”); United States v. Al Kassar, 582 F. Supp. 2d 498, 500 (S.D.N.Y. 2008), aff’d, 660 F.3d 108, 123–124 (2d Cir. 2011) (“[T]he situations are not, on their face, analogous, and it would require a trial within a trial before the jury could determine whether there was any meaningful analogy at all.”); ESPN, Inc. v. Office of Comm’r of Baseball, 76 F. Supp. 2d 383, 407 (S.D.N.Y. 1999) (“The probative value of such an exercise is vastly outweighed by the confusion and delay that would inevitably result from conducting a trial within a trial.”). The Beastie Boys and Monster would presumably litigate how the inclusion of Beastie Boys’ music in these other videos came about; whether this inclusion was unlawful or authorized; if unlawful, whether, under the facts and circumstances, Monster bore responsibility for the violation of the Beastie Boys’ rights; and if so, whether Monster’s conduct was willful. This exercise would unavoidably take up significant time: Presentation of the proof as to the other two episodes at trial could easily take much more time 4 Case 1:12-cv-06065-PAE Document 90 Filed 03/18/14 Page 5 of 22 than the proof as to the Ruckus in the Rockies Video, particularly insofar as the Monster Army Videos were made by six separate athletes. Under these circumstances, admission of evidence of these other videos would present a substantial risk of trial delay and confusion, and the jury could well lose focus on the distinct episode at issue in this case. Revealingly, it appears that the Beastie Boys have not contemplated the implications of their bid to offer such videos. The Joint Pretrial Order does not reflect any intention by the Beastie Boys to thoughtfully litigate the facts and context of these other videos. It does not identify as proposed witnesses any of the athletes who created the Monster Army videos, nor anyone who plans to offer testimony as to the Wheels Fest Video. Indeed, the Beastie Boys do not appear to contemplate offering any percipient fact witnesses to establish the circumstances under which those videos came into being. It appears instead that the Beastie Boys have contemplated simply offering the bare fact of these other ostensibly infringing videos, and from this fact arguing to the jury that these videos were infringing and that the fact of them reveals that Monster’s conduct in this separate case was therefore more likely willful. Although such a clipped presentation (assuming no rebuttal evidence by Monster) would presumably limit the trial delay occasioned by admission of proof of these extrinsic episodes, it would do so at grave risk to the truthseeking process.
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