“Don’t grease my palm with your filthy cash,
Multinationals spreading like a rash,
I might stick around or I might be a fad,
but I won’t sell my song for no TV ad”
– Putting Shame Into Your Game, The Beastie Boys.
This morning I got an alert of a copyright infringement complaint filed by The Beastie Boys against the company Brinker (read the documents here, owner of the restaurant chain Chili’s, for unauthorized use of their song “Sabotage” in a viral ad created as a collaboration with actor BJ Novak and Chef Tim Hollingsworth’s West Hollywood restaurant, Chain, which was based on the look/feel/tone of the Sabotage video and the song “Sabotage.”
Here’s a link to the video of viral ad that triggered the Beasties’ suit against Brinker.
Cute right?
While I’m a big fan of music in advertising, I hate the unauthorized use of a song in an ad, especially when the song is from a band that explicitly doesn’t allow their music to be used in advertising. This is against everything deceased member Adam “MCA” Yauch stood for. In his will, he explicitly requested that none of his songs were to be used in ads, and the surviving Beastie Boys, Adam “Ad Rock” Horowitz and Michael “Mike D” Diamond have honored his request.
Nonetheless, Brinker, a company that runs 119 restaurants worldwide, with a large legal department that should understand copyright law, and the restaurant Chain, co-owned by Michelin Star Chef Tim Hollingswood and BJ Novak, a guy who’s made his money as an actor and screenwriter most notably in the US series of The Office and relies on strong copyright laws to protect his creative work, collaborated to develop what I’m sure seemed like a sure-fire viral campaign to promote Chilis and a West Hollywood restaurant that sells $65 versions of Happy Meals, using the Beastie Boys’ creative work as their touchstone. The only thing is, they developed and launched the campaign ollywoodwithout consulting the underlying rights holders (The Beastie Boys).
DUDE!
The hubris and entitlement are off the charts on this one.
It would make for a great Office Episode: “Self-Sabotage” – Michael Scott tasks BJ Novak’s character Ryan Howard to manage a viral marketing campaign, which he botches after creating a viral ad campaign ad based on a parody of the Beastie Boys’ video for “Sabotage,” using the song and video concept without permission. Shortly thereafter, Dunder Mifflin gets sued for copyright infringement, CEO David Wallace freaks out, Michael falls on his sword and takes the hit for his beloved Ryan who blithely fails upward and is transferred to manage the Worchester branch while Dunder Mifflin must pay out $300K plus $150K in legal fees to the Beasties for a viral campaign that ultimately got a total of seven views, six of which came from his Ryan’s on-again, off-again girlfriend Kelly Kapoor and one from Beastie Boy Mike D, who randomly came across the video when doing a Google search for paper supplies. It practically writes itself.
Actually, BJ, if you ever see this, I wrote it, and if you decide to use this as the basis of a future Office revival script, hook me up and give me a thanks line at the end of the credits so I can add it to my IMDB.
Getting serious, the real question is how did this get through the layers of legal at a public company listed on the NYSE, not to mention the producers of the campaign, Chili’s ad agency, or even Novak’s private attorney or agent without anyone sounding the alarm that they might want to get in touch with the Beastie Boys and let them know they were thinking of this concept, and they wanted to use “Sabotage” as part of the campaign?
It’s perplexing since many of the people involved in the development of this campaign work in the content industry and have at least a surface level of how copyright works. Let alone the executives and decision makers at a large, risk-adverse company like Brinker. I was a CMO at a public company, and we ALWAYS had a conversation with our legal department before the launch of any campaign. It’s just how it’s done.
Of course, we’ve been here before, because there were already two high-profile cases where the companies GoldieBlox and Monster used Beastie Boys songs in their ads without authorization (“Girls” and the five songs “Pass the Mic,” “So Whatcha Want,” “Sabotage,” “Looking Down the Barrel of a Gun,” and “Make Some Noise” respectively). Both cases resulted in takedowns of the ads as well as compensation to the Beastie Boys from Monster of $1.7 Million plus $668,000 in legal fees, and in the case of GoldieBlox, $1 Million to a charity of the band’s choice in STEM education.
You would think that after these two high profile cases, there wouldn’t be another unauthorized use of a Beastie Boys song… But here we are.
So what is the actual case here?
To summarize, BJ Novak and Tim Hollingsworth West Hollywood restaurant Chain, did a collaborative virial marketing campaign alongside the restaurant chain, Brinker-owned Chili’s, that was a parody/homage of the Beastie Boy’s “Sabotage” video, calling the three protagonists in the video… “The Feastie Boys.”
What’s not cute is that they produced, recorded and posted it without asking any permission from The Beastie Boys to use either the concept of the video or the song “Sabotage.”
For context, this viral campaign is part of a broader relationship Chain has with Brinker, one which includes permission from Chili’s to re-interpret the Chili’s logo, and to cross-promote to each company’s audiences, with a total buy-in from Chili’s Chief Marketing Officer George Felix.
As Felix states in a March 2023 Hollywood Reporter article:
“When B.J. and the team reached out to us about this opportunity, we thought it was an awesome way for us to give people a modern take on our Chili’s classics that everyone knows and loves,” George Felix, Chili’s Grill & Bar’s chief marketing officer, tells THR “We had mutual trust and respect across our teams. On their side, I think Chili’s in some ways was kind of their North Star for this chain concept. And so it was mutually beneficial to both sides. I found it to be a really fun collaboration, and the credibility that they bring from a cultural standpoint is huge.”
So Brinker is all in. Now, back to the suit. There are two separate issues here, implied endorsement and repurposing of the video concept and copyright infringement of a sound recording and composition.
Let’s break these down into their two components.
First, an implied, unauthorized endorsement. It looks like there is a case here, but not as strong as the copyright case. Obviously this is a parody of the “Sabotage” video in terms of the style elements and the naming of the protagonists “The Feastie Boys.” It is not an exact copy of the style and action of the original video, but it is an obvious parody and an homage to the original Beastie Boys Video. Now, if it was just a parody video on YouTube, the usage would likely be a none-issue. But, since this parody is being used to sell a product, the argument that this is an unauthorized endorsement by the Beastie Boys has some weight.
After all, there is a causal connection between the two videos. And since this casual connection between the original video and the ad created by Brinker/The Chain are leveraging the noterity and popularity of the “Sabotage” video and the Beastie Boys in general to sell their products, there seems to be a case here for the Beasties to push the point for compensation based on the similarities between the two videos.
“Cause I’m a specializer, rhyme reviser,
Ain’t selling out to advertisers,
What you get is what you see,
And you won’t see me in the advertising” – Triple Trouble, Beastie Boys
Now, let’s address what those of us in the music industry who understand and know the law see as the bigger issue, the unauthorised usage of the sound recording and composition of “Sabotage” in the ad.
This is blatant copyright infringement.
When it comes to use of a song in an ad, a sync license of both a sound recording or composition for commercial exploitation, and the specific permission of the rights holders is required. Period. And this usage is a commercial exploitation. Brinker/The Chain purposely or through gross neglience used an original work without obtaining permission from the owners and did so without making a deal with the owners or providing compensation. That is textbook copyright infringement, and the offending parties will have to pay compensation.
The fact that Brinker’s legal department allowed their marketing department to sign off on without review is frankly malpractice. Novak and Hollingsworth’s legal counsel also should have known better, though who knows if they were even made aware of the particular campaign.
And, to reinforcement the validity of the Beastie Boys’ complaint, there’s the underlying relatioship between Brinker and Chain. Contracts were signed between the parties, there’s an electronic paper trail, including mutiple revisions and approvals of the campaing that will show the working relationship and collaboration between Brinker and Chain to co-market and co-partner in this campaign, further implicating Brinker as a responsible party to the unauthorized usage of the Beastic Boys’ interllectual property.
So is this copyright infringement? Yes. Are Brinker and Chain jointly responsible? Yes. The Beasties have the two companies dead to rights in regards to copyright infringement, and in light of all the above, Brinker is responsible to provide compensation for the unauthorized usage of copyrighted material.
To be clear, the only party actually being sued is Brinker, which in my estimation was a strategic move of the Beastie Boys’ counsel to go after the company with the most at stake and the most mone. Personally, I’d have named both Brinker and Chain in the suit as well as any production company or creative agency involved in this marketing campaign, and perhaps there will be a separate suit against Chain and others, but that’s speculation.
What is incontrovertible in this is a blatant case of unauthorized usage of the sound recording and composition of “Sabotage” for commercial exploitation without negotiation or compensation with the rights holders, and all the parties involved in the development, distribution and exploitation of this campaign are liable for copyright infringement.
And what’s also incontrovertable is that we, as an industry need to hold the line on the value of music and the value of copyrights. It doesn’t matter if it is a legacy artist like The Beastie Boys, an unknowin artist, or Taylor Swift. Our industry is constantly attacked on all side as to the value of its output, and when something like this happens, whether on purpose, hubris or by accident, it has to be dealt with in a way that matainins and confirms the value of sound recordings, concepts and compositions. Simple as that.
I’ll leave you with a quote from Adam “MCA” Yauch’s will:
Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.
These were his wishes, and these are the wishes that his bandmates contune to respect. And if the rest of us don’t respect the wishes of the content creators, and the importance of copyright in ensuring the right of artists to choose how and where their work is used, and their right to fair compensation, just what is the point of copyright in the first place?