Grammy Award-winning singer-songwriter Jason Mraz ("Mraz") and the beer brewing company MillerCoors LLC ("MillerCoors") have settled their lawsuit in the U.S. District Court for the Central District of California (the "Court"). In December 2019, Mraz accused MillerCoors of illegally using his hit song "I'm Yours" (the "Song") in an Instagram advertisement for the Coors Light beer. The lawsuit alleged, among other things, that MillerCoors infringed Mraz's copyright in the Song.

The Song catapulted Mraz to fame. Mraz recorded the Song in 2004 and registered it with the U.S. Copyright Office in 2008. The Diamond-certified song was nominated for the Best Song Grammy Award in 2009. To provide perspective, only 34 songs in history have received a Diamond certification. Popular and catchy, it reached No. 1 on each of the following four radio-based charts: Mainstream Top 40/Pop Songs, Adult Contemporary, Adult Top 40, and Triple A. In fact, I am humming it as I am writing this.

Let's set the [festival] stage. Long before COVID-19, in 2019, when we could all go to music festivals, a music festival in Redondo Beach, California-the BeachLife Festival ("Festival")-got Mraz to be a part of its lineup. Around May 4, 2019, Mraz performed the Song live at the Festival. MillerCoors sponsored the Festival and was its "Official and Exclusive Beer Category Marketing Partner." Later that month, MillerCoors posted an Instagram advertisement that featured approximately 13 seconds of a video of Mraz's live performance of the Song at the Festival. Portions of the advertisement were superimposed with a Coors Light logo that stated "Presented by Coors Light." A can of Coors Light was prominently displayed during another portion of the advertisement. The caption below the advertisement read, "Kicking off summer with the World's Most Refreshing Beer at the Beach Life Festival."

According to MillerCoors, it had a contractual right to use the video clip. A spokesperson for MillerCoors even issued a statement when the lawsuit began saying, "[w]e are very surprised they have chosen to take this route. Despite having the contractual rights to post the short Instagram video in question, we immediately removed it as a courtesy to Mr. Mraz and his team when they reached out."

According to Mraz, MillerCoors, "even after being advised of the infringing use, failed to acknowledge that they were required to obtain Mraz's permission and have never acknowledged the wrongfulness of the use." He added that because of "the family friendly nature of the song," he's "never licensed the composition for use by alcohol companies or other adult-oriented products and would never do so." The lawsuit thus followed.

In March 2020, MillerCoors filed a third-party complaint against the organizers of the Festival, The BeachLife Festival LLC ("BeachLife"). That complaint alleged that MillerCoors had a sponsorship agreement with BeachLife that granted MillerCoors social media usage rights to content, such as live performances, from the Festival. Specifically, their agreement provided that "BeachLife will collaborate with Coors Light to create a piece of custom content with a BeachLife artist to be used in a social media campaign pushed out by BeachLife. Coors Light will have usage rights for this content."  MillerCoors contended that the Mraz video used in its Instagram advertisement was such custom content created by BeachLife. As such, MillerCoors contended that, if "Mraz has been harmed, BeachLife [not MillerCoors] caused such harm."

This case was short lived.  On May 4, 2020, all three parties filed a notice of settlement with the Court.  The details of the settlement are undisclosed. However, there are couple of lessons here. First, if you are using content created by somebody else, conduct a thorough clearance review to make sure that the other party, in fact, has the necessary rights to the underlying content. Second, even if you follow the first lesson, it never hurts to take a second look at the indemnification clause in your contract with the other party . . . cannot find an indemnification clause? You know what to do.

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