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Bang infringed Sony Music’s rights in social media videos, court confirms

By Chris Cooke | Published on Friday 16 September 2022

A US judge has ruled by summary judgement that energy drink Bang infringed the copyrights of Sony Music when it used the major’s recordings in promotional videos posted to social media. However, the judge only partly sided with Sony when it comes to videos uploaded by influencers who were working with Bang’s marketing team.

Given the recent ruling in a similar case pursued by Universal Music, it’s no surprise that the judge sided with Sony in relation to Bang’s own promotional videos.

While social media platforms like Instagram and TikTok have licensing deals with the music industry, those licences only cover user-generated content, not videos uploaded to those platforms by brands. Brands need to directly license any music they use in their promo videos, just like with any other advertising content they create.

Genuine ignorance of that obligation within any one brand’s marketing team isn’t really a defence, even if it means any infringement wasn’t wilful – although that could impact on any damages the brand might be ordered to pay. Meanwhile, the judge overseeing the Sony v Bang case also rejected various other technicalities raised by the energy drink’s legal team.

But what about the influencer content basically commissioned by Bang that also included unlicensed music? Both Sony and Universal want the drinks brand held liable for that as well – specifically for contributory infringement and vicarious infringement. After all, Bang was involved in the creation of those videos, had systems in place to review influencer content, and got the big old marketing benefit of those videos being streamed and shared.

In the Universal case, the judge declined to issue a summary judgement in favour of the major on either the contributory infringement or vicarious infringement claim. Sony, meanwhile, has succeeded in getting a summary judgement in its favour on the vicarious infringement point, but not in terms of contributory infringement.

On the latter, the judge writes: “In their motion for summary judgment, plaintiffs argue that Bang is liable for contributory copyright infringement because the undisputed facts demonstrate that Bang knew or had reason to know of the influencers’ infringements and in fact materially contributed to the influencers’ infringements”.

“In support of Bang’s knowledge”, he goes on, “plaintiffs cite to the following undisputed facts: Bang maintains supervision, direction, and control over the influencer videos through Bang’s ‘audit team’. Bang’s audit team ensures the influencers’ compliance with Bang’s social media guidelines, the platforms’ respective social media guidelines, and relevant laws, including but not limited to copyright laws”.

However, “in response, Bang argues that knowledge of the videos is not the same as knowledge of the infringement and there is evidence from which a reasonable juror could infer Bang reasonably believed that the influencers’ use of plaintiffs’ copyrighted works was not prohibited. The court agrees”.

So, “while plaintiffs have submitted evidence from which a reasonable juror could conclude that Bang knew or had reason to know of the influencers’ infringement, Bang has also submitted evidence from which a juror could conclude that Bang reasonably and in good faith believed that its use – and thereby the influencers’ use – of plaintiffs’ copyrighted works was not barred by law”.

And “while plaintiffs have offered significant evidence to rebut Bang’s evidence, it is not the province of the court to weigh the credibility of evidence on a motion for summary judgment. Accordingly, disputes of fact remain regarding whether Bang knew or had reason to know of the infringing conduct”.

In terms of the vicarious infringement claim, Sony needs to demonstrate that Bang had a certain degree of control over the influencer videos and benefited from them commercially. In Universal’s case, the judge ruled that the major had only done the first of those two things. But, Sony has successfully ticked both boxes.

“The court finds that plaintiffs have met their burden at summary judgment as to the requisite control element of vicarious infringement claim based on Bang’s failure to exercise its right to stop or limit the Bang influencer’s direct infringement”, he says. “The second element of a vicarious infringement claim is direct financial benefit”.

“It is apparent from the record that Bang earned a direct financial benefit from the infringement”, he goes on. “First, it is undisputed that Bang markets its products through social media posts, including by engaging influencers to promote and market Bang and its related products through the influencers’ videos on social media platforms”.

“Further evidencing direct financial benefit”, he adds “is the fact that Bang agrees to pay the influencers a 15% commission from its own profits for any Bang products purchased using that influencer’s promo code. And, of course, Bang financially benefitted by avoiding having to pay plaintiffs any licence fees for the copyrighted works”.

So, not a complete win for Sony Music, but a pretty good result. The major also prevailed earlier this week in a side dispute in relation to Bang deleting many of the videos that contained the music company’s recordings.

Because Bang failed to store that evidence, Sony asked that the court presume that its copyrights were indeed infringed in those videos, and that said videos performed as well as other Bang videos on the social platforms. Those presumptions are not only important in helping Sony prove Bang’s liability, but also in calculating any possible damages.

Although again not granting Sony everything it wanted, the magistrate judge that considered that side dispute nevertheless mainly sided with the major. She wrote that, with the deleted videos, “plaintiffs shall receive a rebuttable presumption that, should song ownership be proven, plaintiffs have also established the second element of a copyright infringement claim, copying (both legal and factual) of constituent elements of the work that are original”.

Where usage data for videos has been lost, “plaintiffs shall receive a rebuttable presumption that the videos had the same reach as a comparable post by the account on which the video was posted”.

While neither Sony nor Universal got everything they wanted on summary judgement in relation to Bang’s promotional videos, the two cases certainly confirm that brands need to directly license any music they put into their own social media posts, and some caution needs to be exercised regarding influencer content too. Especially as both majors are likely to push a little further regarding the liabilities around influencer partnerships.

It remains to be seen if further litigation is filed against other brands who may have assumed or hoped that music in their Instagram or TikTok posts was covered by those platforms’ licences. Or maybe the precedents set here are enough to pressure other brands to comply out of court.

Sony Music did also sue Gymshark over the music in its social media videos, but it turns out that litigation was settled earlier this year.