IP Law Daily, COPYRIGHT—S.D. Fla.: Bang Energy liable for use of unlicensed music in Tik Tok ad campaign, (Jul 13, 2022)

By Matthew Hersh, J.D.

Universal Music, however, failed to show Bang was secondarily liable for infringing ads created by social media influencers.

A collection of record labels and music publishing companies operating under the umbrella of the Universal Music Group were entitled to summary judgment on their claim that a popular energy drink manufacturer infringed upon their exclusive rights to some of the world’s best known music, the federal district court in Fort Lauderdale, Florida, has held. But the court, while finding that Universal Music had proven its case on direct infringement, found that the global music powerhouse fell short of the summary judgment standard for contributory and vicarious liability (UMG Recordings, Inc. v. Vital Pharmaceuticals, Inc., July 12, 2022, Dimitrouleas, W.).

The case involves the advertising campaign for Bang Energy, which lags only behind Monster and Red Bull in the marketing of energy drinks. As described by the court, Bang does not use “traditional” marketing—no print advertisements, billboards, television commercials, or digital ads like Google. Instead, Bang uses only social media and experiential events for marketing, giving special consideration to social media influencers who market Bang’s products in videos posted on TikTok and other websites.

The Universal Music entities, alleging that the TikTok campaign violated their exclusive rights to the musical compositions and sound recordings of some of the world’s most popular music, sued Bang for direct as well as contributory and vicarious infringement. For the direct infringement claim, Universal alleged that Bang directly uploaded advertisements with unlicensed music to TikTok. Universal also alleged that Bang induced or otherwise contributed to the uploading of unlicensed music to TikTok by its numerous social media “influencers.”

The Universal entities moved for summary judgment on their claims, leading to this ruling.

Direct infringement. The court easily granted summary judgment to the Universal entities on the direct infringement claim. Indeed, the court noted, it was undisputed that Bang had posted roughly 140 videos containing portions of Universal’s copyrighted works.

Secondary infringement. But while the Universal entities prevailed easily on direct infringement, they fell short of persuading the court as to Bang’s liability for contributory and vicarious infringement. Both claims rested on the fact that Bang influencers posted eight TikTok videos utilizing Universal’s copyrighted works, including: “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 Trinidad Cardona; “Como La Flor” by Selena; and “ily (I Love You Baby)” by Surf Mesa. In each case, the music entities failed to meet their burden, according to the court.

As to contributory infringement, the court found, the evidence fell short. To be sure, the court noted, Bang pays social influencers for creating and uploading videos to TikTok that promote the Bang brand. Further, the court noted, while Bang provides social influencers with guidelines for what they must include in their videos, “including consuming the product on camera, ensuring that the logo is facing the camera, and what to wear,” those guidelines say nothing about copyright. But that was not enough, the court held. Critically, the court noted, there was ample evidence that Bang plays no part in the production of third-party influencer videos and similarly that they “do not select or have any input regarding the selection of music included in influencers’ TikTok videos.” Thus, the court concluded, Bang could not have contributed to the influencers’ infringement.

The vicarious liability claim also failed, the court found, although for different grounds. To prove vicarious liability, a plaintiff must show that the defendant had the right and ability control the infringer’s conduct and that it profited directly from the infringement. The first prong of the test was easily met, the court determined, because Bang’s social media policy prevented its influencers from being paid unless they provided the videos to Bang for auditing prior to payment. But the financial prong was not met. The Universal entities waited until their reply brief to introduce that evidence, the court observed, and that would preclude their bid for summary judgment.

The Case is No. 0:21-cv-60914-WPD.

Attorneys: Brendan Stuart Everman (Stroock Stroock & Lavan LLP) for UMG Recordings, Inc. Joseph Thomas Kohn (Quarles, Brady LLP) for Vital Pharmaceuticals, Inc. d/b/a Bang Energy.

Companies: UMG Recordings, Inc.; Vital Pharmaceuticals, Inc. d/b/a Bang Energy

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