When it comes to copyright infringement, the internet—namely social media platforms—has taught even very large commercial entities some very bad habits. When I read yesterday morning that singer/songwriter Jason Mraz filed suit yesterday against MillerCoors LLC for making infringing use of his mega-hit “I’m Yours” on Instagram, my first thought was “Of course they did,” when it really should have been “What the hell were they thinking?”
One barely needs to read the complaint to interpolate the facts from this summary sentence on Bloomberg Law: “The allegedly infringing advertisement, posted [to Instagram] in May, reportedly shows about 13 seconds of Mraz’s performance of ‘I’m Yours’ at the BeachLife Festival in Redondo Beach that same month.” Then, Bloomberg quotes the complaint stating, “Superimposed over portions of the Infringing Advertisement is a logo for Coors Light stating ‘Presented by Coors Light.’” Holy dope-slaps, Batman, how does a multi-national corporation do something this dumb?
According to TMZ, a spokesperson for MillerCoors stated, “MillerCoors contracted the rights to the BeachLife Festival and video assets through the event’s promoter, so if they truly feel there has been a violation here, we are not the party they should be suing.” Without knowing any of the details about that contract, I’m going to guess that somebody didn’t do his homework. Because ain’t no way Mraz and the roughly forty other artists who played the festival agreed to third parties turning their appearances and music into individual advertisements.
Even if Mraz separately had grounds for a complaint against the promoter, that would not shield MillerCoors from liability for its own conduct, which the complaint alleges amounts to copyright infringement, trademark infringement, infringement of Mraz’s right of publicity, California’s civil code protecting the right of publicity, and California’s code proscribing deceptive business practices. I doubt this case will last very long. This is just sloppy work by someone at the agency or within MillerCoors, and it will be interesting to see if the beermaker even bothers to file a response before settling.
The CASE Act is a Useful Alternative for Everyone
Because this commercial use involved concert footage—the kind of clip fans upload to social media all the time now—and it was placed on Instagram, the misstep of this multi-national corporation is indicative of just how common these bad habits are among smaller entities and rightsholders. Imagine the singer/songwriter in this case is not a big star but a professional working artist just becoming popular enough to attract an infringing use of her work, and she finds a similar video of her performance used to promote some start-up business.
Both the artist and the business owner in this example can be counted on to be fairly clueless about intellectual property, which is nothing new; but thanks largely to “internet culture,” the very idea that the business entity should even bother seeking the artist’s permission is anathema to far too many people’s way of thinking. So, if and when the artist makes any kind of complaint, or requests that the user remove the infringing use, she is as likely to be told that she should be “grateful for the free publicity” as she is to get a satisfactory response. This brush-off alone can make a person want to sue somebody, and in this instance, the artist’s claim would be a slam dunk.
But in the interests of both the copyright owner and the user in this example, a small-claim option would be a much better next step than federal court, where the infringer would end up settling rather than spend several thousand dollars to wind up owing damages and fees in excess of $200,000. While the CASE Act was developed as an alternative for copyright owners who cannot afford federal litigation, it should also not be underestimated as an alternative venue for defendants in cases where the claimant just might go to federal court and where the respondent would almost certainly lose.
I have opined a few times in other posts that the generalized anti-copyright narrative too often implies that everything that happens online is “cool,” and this winds up getting people into legal trouble that could be easily avoided. If MillerCoors can screw up like this, it is only natural that less-experienced enterprises with more limited resources will make similar errors. Better not to infringe in the first place, but if one does, the small-claim option provided by the CASE Act would be an attractive option for commercial users who naïvely make improper uses of works.
What opponents of the CASE Act would have you believe is a twist on this narrative: one that says, “If MillerCoors can make this kind of mistake, then average, non-commercial users are really in trouble when the small-claim option opens a floodgate of complaints against you, me, our kids, and grandma.” I and others have explained about fourteen ways to Sunday why the small-claim option why this is fearmongering nonsense promoted by organizations that hate copyright enforcement so much, they will not even admit to some of the advantages CASE offers to respondents and abusers of DMCA takedown provisions.
It’s funny that the object lesson that triggered this post happens to involve Jason Mraz because, as far as I am aware, he is about as chill as it gets with regard to fans sharing his work in various ways on social media etc., but that does not diminish his right or rationale for restricting uses he feels are inappropriate, as was the case with the Coors Light spot.* Mraz doesn’t need a small-claim alternative any more than MillerCoors does, but that the smaller artist just starting out does need this solution. And just maybe, so does the start-up business who unwisely infringes her work.
Photo by cppzone
*NOTE: Edited from original statement mentioning Mraz’s support of CASE Act, which may be true, but I was not able to verify.
