Last year, Universal Music Group and Sony Music Entertainment filed separate lawsuits against Bang Energy parent company Vital Pharmaceuticals over the alleged infringement of their music in social media ads.
In July, a Florida court found that Bang had violated UMG’s copyrights by using its music in social media ads without permission.
This week brings news of the ruling in Sony Music’s lawsuit against Bang Energy.
According to an order issued by a Florida court on Wednesday (September 14), and obtained by MBW, Sony Music’s motion for partial summary judgment has been “granted in part and denied in part”.SME initiated its legal proceedings against Bang in August 2021. Universal launched its own proceedings in April 2021.
SME’s Vital Pharmaceuticals lawsuit followed another copyright infringement lawsuit filed by Sony Music in July 2021 against UK-born fitness apparel brand Gymshark, also over the use of copyrighted recordings in ads on platforms like TikTok and Instagram.
According to the ruling published this week, the defendants in the most-recent lawsuit, Bang Energy, “have directly posted at least 286 videos that include the recordings at issue” on various social media accounts across TikTok, Instagram, YouTube, Facebook, and Triller.
The document adds: “There are no licenses from Plaintiffs to Defendants to commercially use the recordings.
“Nor are there licenses from Plaintiffs to any of the platforms that would permit end users of any of the platforms to use the recordings for commercial purposes.”
The ‘Omnibus Order’ filed by a Florida court this week, and signed by U.S. District Judge William Dimitrouleas, states that Bang has sold over 100 million units of its energy drinks and generated over $1 billion gross revenue since 2017, making the brand the third-largest selling energy drink in the US.
The filing notes that “Bang’s success is backed by its marketing strategies that appeal to its consumers” and that the company spends “tens of millions of dollars annually on its promotion through social media”.
Within the document, which you can read in full here, the court explains that it decided to grant Sony Music’s Motion for partial summary judgment as to ‘Count I’, on “the issue of liability on their claims against Defendants for direct infringement”, i.e. for videos posted directly by Bang on its own channels.
On this first count, for direct infringement, the order says that Bang does not “dispute that they have directly posted approximately 264 videos utilizing portions of Plaintiffs’ copyrighted works”.
Bang did try to dispute Sony’s “evidence of direct infringement with respect to 22 of approximately 286 videos”, however.
The drinks company argued that 22 of the videos feature “remixes, contain a different tempo, are sung by an artist different than the artist in the original work that Plaintiff produced, are not part of the uploaded video, are of a very short duration, and/or are unrecognizable in the video”.
The court found the argument to be insufficient, noting that, “based on the foregoing, it is undisputed that Defendants directly posted approximately 286 social media videos utilizing portions of Plaintiffs’ copyrighted works, works neither Defendants nor the social media platforms were authorized to use for commercial purposes”.
On ‘Count II’, Sony argued that Bang is liable “for contributory and/or vicarious copyright infringement” for videos posted by influencers containing Sony’s music.
The Court addressed each of these arguments in turn and found that Sony is entitled to summary judgment “as to the issue of liability on their claims against Bang for vicarious infringement, but are not entitled to summary judgment as to the issue of liability on their
claims against Bang for contributory infringement”.
According to the court document, on the latter claim, regarding ‘contributory infringement,’ Sony claimed that Bang is “liable for contributory copyright infringement because the undisputed facts demonstrate that Bang knew or had reason to know of the Influencers’ infringements and in fact materially contributed to the Influencers’ infringements”.
Bang Energy argued, however, “that knowledge of the videos is not the same as knowledge of the infringement and there is evidence from which a reasonable juror could infer Bang reasonably believed that the Influencers’ use of Plaintiffs’ copyrighted works was not prohibited”.
The Court agreed with this argument and decided not to grant Sony summary judgment for contributory infringement.
On the issue of Sony’s claims against Bang for “vicarious infringement”, for which Sony was granted a summary judgment, the court noted that “Vicarious infringement requires both a direct financial benefit from the direct infringement and the ‘right and ability to supervise a party responsible for direct infringement'”.
Bang argued that Sony presented “no evidence that would tend to establish that Defendants have any sort of legal right, let alone practical ability, to stop influencers from posting the allegedly infringing videos”.
Based on “undisputed material facts”, the court disagreed with this argument. The court also noted that “it is apparent from the record that Bang earned a direct financial benefit from the infringement”.
Finally, the court denied Bang Energy’s motion for summary judgment. The Court disagreed with Bang’s argument in its own summary judgment motion that Sony “cannot show actual damages nor a causal relationship between the infringement and Bang’s profits, and therefore that Plaintiffs cannot recover damages” under copyright law.
The court said that Sony has “submitted sufficient evidence of a causal connection between the infringement and Bang’s profits to survive summary judgment”.
It added: “Defendants’ arguments that those profits are attributable to other factors would be more properly argued to the jury at trial. Moreover, Defendants have not cited and the Court is unaware of any authority requiring Plaintiffs to proffer an expert on causation to survive summary judgment.
“Accordingly, Bang has not shown that there is no genuine dispute of material fact as to actual damages or causation and therefore summary judgment is due to be denied.”
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