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Court says Bang’s own TikTok videos infringed Universal’s rights, but not its influencer content

By | Published on Wednesday 13 July 2022

Bang energy drink

A US judge has ruled by summary judgement that energy drink Bang is liable for copyright infringement for including Universal Music controlled tracks in its promotional videos on TikTok without licence.

However, the same judge declined to hold Bang and its parent company Vital Pharmaceuticals liable for unlicensed music in videos posted by TikTok influencers that they worked with.

There have been a few lawsuits in the last year over brands using unlicensed music in promotional videos posted to social media. In some cases those brands are under the impression that their videos are covered by the music licences secured by platforms like TikTok. But they are not, the platform licences only covering non-commercial user-generated content.

Indeed, when Universal Music first reached out to Bang regarding its use of the major’s music in promotional TikTok posts, a lawyer told the music firm that the energy drink company’s “understanding is that TikTok provides use of these songs and others with a licence to all of its members”.

But, and it’s always worth stressing this again, TikTok definitely does not provide a licence for brands to use music in their videos, and TikTok itself is usually pretty clear on that point.

And, as the judge overseeing Universal’s lawsuit noted in his ruling this week, even if you accept Bang’s claim that its team was ignorant regarding the limitations of TikTok’s music licences, that doesn’t stop the company from being liable for copyright infringement. That ignorance might impact on any damages Bang and Vital are ordered to pay, but not on their liability.

In that ruling, Judge William P Dimitrouleas cited earlier precedent to the effect that “copyright infringement is a strict liability offence, meaning the ‘the copyright owner need not prove any knowledge or intent on the part of the defendant to establish liability for copyright infringement’”.

Therefore, he went on, “defendants’ argument that they believed that TikTok gave them a licence to use plaintiffs’ copyrighted musical works is, at most, relevant to the issue of damages, not to the issue of liability”.

So, Dimitrouleas concluded, when it comes to the videos Bang posted itself that contained unlicensed Universal Music tracks, that’s a nice simple case of copyright infringement. And while the damages Bang is due to pay will need more consideration in court, on the liability point he is able to rule in Universal’s favour without any additional debate.

But what about the influencer videos that Bang commissioned? The music industry would argue that as soon as an online creator receives payment or other incentives from a brand to create a video, they too are no longer covered by a social media platform’s user-generated content licences. But can the brands who do the commissioning also be held liable for any resulting infringement? In legal terms, under US law, that would be so called contributory infringement.

Universal argued that Bang was liable for contributory infringement, because “Bang has a social media team that audits the Bang influencers’ videos, including the music that plays with the videos, before the videos are posted” and “as a condition for payment, Bang influencers are instructed to submit their videos to Bang’s auditing team with links to any music” before posting their content.

But Bang countered that it has “no part in the production of third-party influencer videos” and “does not select or have any input regarding the selection of music included in influencers’ TikTok videos”.

Ultimately the judge declined to grant a summary judgement in Universal’s favour on the contributory infringement front – and, in fact, instead issued a summary judgement in favour of Bang concluding that the major had failed to prove the drinks brand was liable for the influencer videos.

Though that conclusion could be seen as stemming from a technicality. Universal also wanted to hold Bang liable for vicarious infringement in relation to the influencer content it commissioned, such infringement usually resulting in higher damages. And most of Universal’s arguments regarding the influencer videos related to that vicarious infringement claim, resulting in the contributory infringement claim being less well argued.

On the vicarious infringement point, the judge ruled that Bang did have sufficient control over the influencer content it commissioned, but that Universal hadn’t proven another key element of that kind of infringement, which is that the drinks company received ‘direct financial benefit’ from the unlicensed use of the major’s songs and recordings by the influencers.

All of which means – while this ruling clearly confirms that brands posting videos containing unlicensed music to social media platforms are not covered by those platforms’ music licences and are therefore liable for copyright infringement – regarding influencer content it seems likely there is much more debate to be had.

As noted, this isn’t the only lawsuit regarding brand videos on social media sites, with Sony Music also suing Bang as well as sportswear firm Gymshark. So we can expect plenty more discussion regarding the liability of brands when influencers they employ use music without a label’s permission.

This story is discussed on this edition of our Setlist podcast.