The “Enigmatic and Elliptical” “Dope!”

Not in a drug case, or a slander case, but a contract case, Beastie Boys v. Monster Energy Co. (S.D.N.Y. Nov. 4, 2013). The relevant question was whether a response of “Dope!” conveyed a license to use copyrighted work; here’s the heart of the court’s analysis (paragraph breaks added):

In proper context, the word “Dope!” could certainly be taken as an expression, albeit unorthodox, of approval and acceptance of another’s antecedent offer. But here, Z-Trip’s exclamation, “Dope!” was in response to Phillips’s query, “Please have a look at the video from this past weekend and let me know if you approve.”

Viewed in this context, Z-Trip’s response of “Dope!” plainly communicated that, in some sense, he “approve[d]” of “the video.” But such approval is quite distinct from conveying assent to a mutual exchange of promises or other consideration. And it certainly did not convey that Z-Trip had authority to approve, on behalf of the Beastie Boys, a free license to Monster to use the Beastie Boys’ recordings and songs.

There is no fair reading of the facts under which Z-Trip, by exclaiming “Dope!,” accepted such a contractual offer. Z-Trip’s locution, although memorable, was entirely too enigmatic and elliptical to constitute the “clear [and] unambiguous]” acceptance necessary for contract formation.

See Eric Goldman (Technology & Marketing Law Blog) for more information; thanks to the Media Law Resource Center MediaLawDaily for the pointer.