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Now Warner Music sues Bang over the unlicensed music in its TikTok videos

By | Published on Tuesday 20 September 2022

Bang energy drink

Warner Music has followed the lead of both Universal Music and Sony Music in suing energy drink Bang over its use of unlicensed music in the promotional videos it posted to social media platforms like TikTok and Instagram. The third major joining this particular litigation party could add millions to the damages the drinks brand has to pay.

Although platforms like TikTok and Instagram have their own licences from the music industry, those only cover user-generated content, not content created and uploaded by brands. Therefore Bang should have been securing sync licences directly from record companies and music publishers whenever it put commercially released music into its social media posts. Its failure to do so means those promotional videos were infringing the copyrights of the music companies.

Both Universal and Sony have now won summary judgements in their favour regarding the unlicensed music in Bang’s videos and its liability for copyright infringement, which means Warner will be pretty confident that it will likewise prevail. In its lawsuit last week it said that Bang had uploaded videos to TikTok using nearly 200 unlicensed tracks that it controls, including music by Cardi B, Lizzo, Dua Lipa, Jack Harlow, Van Halen and Bruno Mars.

Although both Universal and Sony got summary judgements in their favour regarding Bang’s own TikTok videos, there remain some questions over the influencer content that the drinks company commissioned which likewise featured unlicensed music.

The majors want Bang held liable for so called contributory infringement and vicarious infringement in relation to the influencer videos. But Universal failed to get a summary judgement in its favour regarding that content, while a judge said Sony had proven vicarious but not contributory infringement.

In terms of any damages each of the majors can expect, that will depend on whether they can prove Bang’s copyright infringement was wilful. If they can, the damages will likely be much higher.

Bang’s lawyers have previously argued that the drinks firm’s marketing team were under the impression that they were covered by TikTok’s music licences. And while that claim did not prove useful when it came to Bang’s bid to avoid liability for the infringement, it will likely be used again to argue that the infringement was not wilful.

But, according to Billboard, Warner’s lawsuit pre-empts that line of argument. “Defendants’ infringement was clearly wilful”, it states.

“Among other things”, it adds, “the social media platforms on which the infringing Bang videos were posted expressly state that users have no right to infringe music, particularly in connection with commercial activities. [And] even after receiving WMG’s cease-and-desist letter, Bang posted multiple new Bang videos featuring the same copyrighted musical works previously identified”.