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Now Sony Music sues energy drink brand Bang over unlicensed music in social media videos

By | Published on Thursday 5 August 2021

Sony Music

Sony Music has filed another copyright infringement lawsuit against a brand that has used its music without licence in promotional videos posted to social media. This time it’s energy drink brand Bang and its parent company Vital Pharmaceuticals being sued over their alleged use of at least 132 unlicensed Sony-controlled sound recordings in posts on TikTok, Instagram, YouTube and Facebook.

In a lawsuit filed with the courts in Florida, Sony Music says that “Bang is a brand of energy drinks and sports nutrition supplements” that has “experienced meteoric growth” so that it is “the third highest-selling energy drink in the United States”.

It goes on: “Bang’s explosive growth has been amplified by its use of social media – the Bang defendants actively market Bang and Bang-related products on social media, including TikTok, Instagram, YouTube and Facebook apps and related websites to increase Bang’s reach, brand value and sales”.

The social media marketing activity, of course, involves “regularly posting videos displaying Bang Energy products including its energy drinks, energy shots and Bang-branded apparel”. And what do those videos contain? Well, “the Bang defendants’ videos are choreographed to famous copyrighted sound recordings and musical compositions”, of course.

“The Bang defendants brag loudly about the billions of views that their videos have received”, the lawsuit continues, “but have been silent since Sony Music demanded an explanation for the unauthorised use of at least 132 copyrighted sound recordings – owned or exclusively licensed by Sony Music – in no less than 209 videos posted on the social media accounts”.

“Sony Music informed the Bang defendants of their infringing use of Sony Music’s copyrighted material during a telephone call with Bang’s in-house counsel on 6 Apr 2021 and through a letter sent to Bang on 13 Apr 2021”, the legal filing states. “In response, the Bang defendants meekly stated that its legal department did not agree with Sony Music’s contentions of infringement, but failed to provide any basis for their disagreement”.

“In its communications with the Bang defendants, Sony Music specifically identified the posts where its copyrighted material was used without its permission. Despite being provided with a detailed list of infringing posts, the Bang defendants nonetheless continued to use Sony Music’s copyrighted musical work in their videos as well as make new infringing videos”.

Sony Music last month sued sportswear firm Gymshark for likewise using, without licence, its recordings in promotional videos that were posted to social media. The social media platforms referenced in both lawsuits all have their own licensing deals with music companies like Sony, of course, however those licences generally only cover music that appears in user-generated videos, not videos created and posted by companies.

Both Gymshark and Bang also work with influencers around their social marketing, meaning that some of the videos including Sony recordings were created and posted by the brands themselves, while others were created and posted by influencers at the brand’s request.

However, Sony would argue that this distinction is irrelevant, because once influencers are working with brands their videos no longer fall under any user-generated content licences. The only difference is that the defendants are liable for direct infringement in relation to their own created videos and secondary infringement in relation to the influencer videos they commissioned.

“By incorporating Sony Music’s copyrighted works into the infringing videos, and then making those infringing videos available to the public without licence or authorisation from Sony Music, the Bang defendants are infringing Sony Music’s exclusive rights to reproduce, prepare derivative works based upon, distribute, and publicly perform [its recordings]”, the lawsuit then states, getting to the nitty gritty of the legal arguments.

Stating that Bang and its owner Vital Pharmaceuticals are fully aware of how intellectual property laws work, the lawsuit notes how the defendants have pursed their own litigation in the same court as this case in order to protect their own IP rights. And Bang also previously approached Sony about securing a licence “in connection with the inclusion of Sony Music’s sound recordings in a music library component of a new app it intended to launch”.

Nevertheless, the major argues, when it comes to social media marketing content, Bang continues to use its recordings without permission, in doing so “robbing Sony Music of the revenues it is entitled to for use of its sound recordings and depriving its artists of an important source of revenue”. Which means that “the Bang defendants caused Sony Music irreparable harm”. And to that end, Sony would like statutory damages of $150,000 per infringement.

Given Bang’s in-house legal team have previously told Sony that they don’t think their social media videos infringe the major’s copyrights, it will be interesting to see if the drinks company formally presents that argument in its response to the lawsuit and, if so, on what grounds they back up that viewpoint. It will also be interesting to see if the Gymshark and Bang lawsuits are just the start in Sony’s efforts to crackdown on the unlicensed use of its music in social media promo content.