On April 28, 2021, Universal Music and its affiliated record labels sued Bang Energy, an energy and lifestyle brand, for TikTok videos that infringed Universal Music’s copyrighted musical works, such as those by Megan Thee Stallion and Billie Eilish, even though the songs were selected from TikTok’s music library. ECF No. 1; ECF No. 60 at 3–5. Universal Music alleged several counts of infringement: direct copyright infringement by Bang Energy itself and indirect copyright infringement by influencers. ECF No. 1.
In response, Bang Energy argues that TikTok not only granted Bang Energy access to the music library for advertising but even assisted Bang Energy in creating a video using that music library. ECF No. 60 at 5.
On July 12, 2022, the United States District Court for the Southern District of Florida summarily judged that Bang Energy directly, but not contributorily, infringed Universal Music’s copyright. ECF No. 204 at 11–13; ECF No. 205 at 5–6. That Universal Music owned the songs and that Bang Energy posted videos with those songs were undisputed. ECF No. 204 at 11–13. Because copyright infringement is a strict liability offense, it did not matter whether Bang Energy genuinely believed that TikTok gave it a license to use the copyrighted musical works. Id.
On the other hand, because Bang Energy had no part in selecting songs or otherwise producing influencer TikTok videos, it could not have intentionally induced or encouraged direct copyright infringement. ECF No. 205 at 5–6. This is not to say that Bang Energy can never be vicariously liable for copyright infringement by its influencers. This issue, the court left for trial. ECF No. 204 at 16–19; ECF No. 205 at 6–9.
As always, Nixon Peabody LLP can provide practical considerations to record labels, brands, and talent when navigating commercial relationships and intellectual property.