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Sony asks court to sanction Bang Energy over lost videos in social media marketing copyright case

By Chris Cooke | Published on Thursday 9 June 2022

Sony Music has urged a US court to sanction energy drink brand Bang Energy and its owner Vital Pharmaceuticals for failing to store 171 videos that are central to a copyright infringement lawsuit filed by the major. It wants to the court to assume those videos contained unlicensed music controlled by Sony and were widely viewed on social media, and to order the defendants to pay any legal fees Sony incurs in relation to this particular side dispute.

Bang Energy was sued by Sony last year in relation to the drink brand’s social media marketing activity and the use of unlicensed Sony recordings in videos it made and posted to social platforms, both directly and in partnership with social influencers. The litigation is part of a music industry crackdown, being led by Sony, on brands that use music in social media posts without licence.

Some brands might be under the impression that their videos are covered by the music licences secured by the social media platforms themselves. However, that is very much not the case, with the platform licences only covering user-generated content. That means music used in brand-made content needs to be directly licensed from the record companies and music publishers, even if the content is technically made and posted by an influencer.

“The Bang defendants brag loudly about the billions of views that their videos have received”, Sony’s lawsuit stated, “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 … videos posted on the social media accounts”.

Sony actually identified 252 videos posted by Bang Energy and the influencers it works with that allegedly contained unlicensed Sony-controlled music. As it went legal, it specifically demanded that the drinks company preserve all evidence relating to those videos. However, it turns out, 171 of them were not preserved.

In a new legal filing this week, Sony writes: “After commencing this action, plaintiffs requested in discovery that defendants produce all videos they and their influencers posted to social media. Rather than preserving and producing the requested videos, defendants apparently destroyed hundreds of them, including approximately two-thirds of the videos identified by plaintiffs”.

However, the deletion of those videos was not immediately revealed, Sony adds. “Although defendants knew they failed to preserve the videos and that they had been lost or destroyed, defendants misled plaintiffs into believing that the videos would be produced, violated multiple court orders compelling defendants to produce the videos at issue in this action, and then, only when left with literally no alternative but to defy this court’s insistence on production of the videos, admitted that 171 videos were lost”.

“Plaintiffs have been severely prejudiced by defendants’ spoliation”, the new legal filing adds. “As an initial matter, plaintiffs wasted almost three and a half months meeting and conferring about videos that defendants knew or should have known they no longer had”.

“More importantly”, it goes on, “the videos are direct evidence of defendants’ infringement and, if properly preserved, would have revealed the ‘reach’ of the videos on social media (ie the number of views, likes, and comments by other social media users). This evidence is directly relevant to both liability and damages”.

With all that in mind, Sony wants the court to rule that, as the case proceeds, an “adverse inference” will be imposed in relation to the lost videos.

Which is to say, for “each video identified by plaintiffs that cannot now be located because that video was not properly preserved”, the court will assume that it “embodied the copyrighted sound recording as alleged”, and also that “the videos that were not preserved were viewed as many times and had as much social media engagement and reach as the most popular videos posted by defendants or their influencers on social media”.

In addition to that, Sony wants the court to order Bang Energy to cover the “attorneys’ fees and costs incurred in bringing this motion” and to provide “other and further relief as the court deems just and proper”.