Written by: Paul Resnikoff
UMG and its subsidiaries had claimed a case for Direct Infringement of copyrighted music in Bang’s TikTok promotional videos, and Contributory Infringement for allowing influencers to use that music to promote Bang.
For brands that think TikTok’s blanket major licenses apply to them — Universal Music Group begs to differ.
On Monday, U.S. District Judge William P. Dimitrouleas ruled that UMG is entitled to partial summary judgment against Bang Energy for unauthorized usage of music on TikTok. Bang is a brand of energy drinks and sports nutrition supplements, and is a subsidiary of Vital Pharmaceuticals.
The lawsuit was filed in April 2021, and UMG accused the energy drink maker of using snippets of UMG-owned music without permission in almost 140 of its promoted TikTok videos.
Regarding the issue of liability in its claims for direct infringement, judge Dimitrouleas ruled that Bang was liable for about 140 TikTok videos that used UMG’s copyrighted music. However, for UMG’s claim of contributory infringement—which pertains to Bang influencers using UMG-controlled music in influencer videos—the judge did not hold Bang Energy liable.
Concerning damages, Judge Dimitrouleas said there are too many disputed facts to enter summary judgment.
According to UMG’s lawsuit, when the label initially reached out to Bang regarding the use of unlicensed, copyrighted music, Bang responded by saying, “Our understanding is that TikTok provides use of these songs, and others, with a license to all of its members.”
In response, UMG quoted Tik Tok’s terms and conditions that state, “No rights are licensed with respect to sound recordings and the musical works embodied therein that are made available from or through the service.”
UMG claimed that following this exchange, Bang continued to infringe on copyrighted music. Bang’s CEO Jack Owoc’s official Tik Tok account posted promotional videos that utilized copyrighted musical works. And in September 2021, five months after litigation began, social media influencer Young Park posted a TikTok video marketing Bang’s brand, and the content used UMG’s copyrighted track “Baby Got Back” by Sir Mix a Lot. It appears that Park’s video was vetted by Bang before being approved for social media.
TikTok does allow music reproduction for user-generated content. However, as soon as influencers receive financial compensation for a brand’s promotion, the content fits the definition of ‘commercial use’ and is no longer covered by the platform’s licenses.
Judge Dimitrouleas said that Bang’s argument that it thought TikTok gave it a license to use UMG’s music is ‘relevant to the issue of damages, not liability.’
Citing earlier precedent in UMG’s claims of direct infringement, Judge said that “Copyright infringement is a strict liability offense, meaning the copyright owner need not prove any knowledge or intent on the part of the defendant to establish liability for copyright infringement.”
This is only a partial win for UMG.
UMG’s lawsuit had also claimed that since Bang Energy had ‘requisite control and financial benefit’ from influencer videos, they were also liable for vicarious copyright infringement. Vicarious infringement requires both a direct financial benefit from infringement, along with Bang’s ‘ability to supervise a party responsible for direct infringement.’ It’s important to note that this financial benefit does not have to be ‘substantial’.
In their summary judgment motion, UMG had stated that their copyrighted material ‘acts as a draw for customers’ and “Bang has profited from the Influencer videos by dramatically expanding its social media reach and increasing its profits.”
The music industry giant had claimed that Bang was liable for vicarious infringement as it considers these influencer videos to be advertisements, and it’s a condition for payment that influencers submit videos to Bang’s auditing team for approval.
Responding to the lawsuit, Bang had maintained that it played no part in the production of influencer videos.
The judge ruled against UMG’s motion on claims of vicarious infringement, noting that UMG didn’t “meaningfully respond” to Bang’s argument that it doesn’t play a part in the production of third-party influencer videos.
Bang influencers had posted eight TikTok videos using UMG copyrighted works “Jingle Bell Rock” by Bobby Helms; “Pineapple” by Karol G; “Poof Be Gone” by KyleYouMadeThat; “Me Too” by Meghan Trainor; “Baby Got Back” by Sir Mix a Lot; “Dinero” by Tinidad Cardona; “Como La Flor” by Selena; and “ily (I Love You Baby)” by Surf Mesa.
It’s important to note that UMG isn’t the only music catalog owner that’s seeking damages from Bang Energy. In August 2021, Sony Music Entertainment also sued Bang for infringement of copyrighted works “Bad” by Michael Jackson and “Please Don’t Go” by Mike Posner (among others), for its social media videos. Sony Music’s case is also being heard in the U.S. District Court for the Southern District of Florida.
UMG and its various subsidiaries form the largest music label in the world. The company’s catalog boasts copyrighted music by Ariana Grande, Billie Eilish, Justin Timberlake, the Beach Boys, and other artists.
Source: Digital Music News
