August 11, 2022

Brands Need to Police Influencers’ Use of Copyrighted Materials

The Southern District of Florida recently issued a decision in a case that brands using social media influencers should note. While the decision was not an all out loss for the brand, it did conclude that the brand could be liable if the copyright owner was able to show the brand profited from its social media influencers’ use of copyrighted materials.

By way of background, Universal Music is suing Vital Pharmaceuticals, Inc., which makes an energy drink called Bang, and its owner, Jack Owoc, for copyright infringement. The lawsuit alleges that Bang and Owoc directly infringed on Universal Music’s copyrights with TikTok posts that included Universal Music’s copyrighted music. Universal Music further claims Bang was contributorily and/or vicariously liable for videos posted by social media influencers featuring Bang. In response, Bang and Owoc claimed that the TikTok videos were covered by TikTok’s music licenses and that Bang could not control what its influencers posted to TikTok.

As an introduction (or refresher), direct infringement is where someone uses copyrighted materials that belong to someone else. In contrast, contributory infringement is where someone encourages another to use copyrighted material belonging to a third-party, and vicarious infringement is where a party profits from another’s direct infringement and does not stop that direct infringement.

In support of its claims, Universal Music introduced evidence that Bang encouraged influencers to create and post TikTok videos promoting Bang’s products with Universal Music’s copyrighted works. Universal Music claimed that, because Bang had the power to withhold payment to its influencers, it could control whether influencers used Universal Music’s copyrighted works.

On Universal Music’s motion for summary judgment, the court held that Universal Music established that Bang and Owac directly infringed on its copyrights. Specifically, the court found that Bang and Owac directly copied Universal Music’s copyrighted works.

The court went on to find that Universal Music was not entitled to summary judgment on its claim of contributory infringement as it had not shown that Bang had any input into the music used by its influencers.

The court further concluded that Universal Music established that Bang had sufficient control over its influencers to prevail on a claim of vicarious infringement. Despite this finding, the court denied Universal Music’s motion for summary judgment because Universal Music had not shown that Bang received any financial benefit as a result of its influencers’ posts. As a result, this issue will have to await trial when Universal Music can introduce evidence as to whether Bang benefited.

Despite the fact that this decision was not an all out loss for Bang, brands should definitely keep it in mind when working with influencers.