In order to promote its energy drink, Bang’s promotional team drives to different areas and hands out samples of its energy drink to people walking by. Bang also hires “social media influencers” to promote their drink on social media platforms such as TikTok. Bang’s social media team monitors these videos and takes consensual ownership of the ones that do best. These videos, which are then reposted by Bang onto their own TikTok account, have contained copyrighted music, including recordings used by Universal.
TikTok has become a popular platform that invites its users to make videos using free music that TikTok has licensed from companies such as Universal. TikTok has agreements with various artists, record companies, and music publishers that allows for the legal use of music contained in their music library. TikTok has deals in place with distributors like TuneCore and CD Baby in order to license their music; this allows artists to then receive royalties from having their music used on the app.
However, in 2020, TikTok made changes to the way businesses are able to use music on the platform. Businesses on TikTok now only have access to a Commercial Music Library of “royalty-free” works for free. This means that these businesses are not allowed to use the same licensed music as regular TikTok users. Many of the recordings used by Bang Influencers were not contained in the Commercial Music Library.
After receiving notice from Universal in December 2020, Bang’s Chief Counsel expressed his impression that TikTok provides the use of the alleged music with a license to all of its users. Universal’s counsel responded that TikTok’s terms and conditions say just the opposite, i.e., “no rights are licensed to sound recordings” through the TikTok app.
Universal Music filed a lawsuit for copyright infringement on April 28, 2021, against Bang Energy Drink in the US District Court for the Southern District of Florida. Universal owns a multitude of sound recordings, including music by such well-known artists as Taylor Swift, Lady Gaga, and Rihanna.
According to Universal, Bang posted approximately 140 TikTok videos with Universal’s music without authorization.
On April 29, 2022, both parties filed for summary judgment, meaning that both Universal and Bang asked the Court to decide the case before trial. On July 12, 2022, the court granted partial summary judgment in favor of Universal (i.e., the Court agreed with Universal that Bang had committed copyright infringement) after finding that Bang’s unauthorized commercial use of Universal’s songs in 140 TikToks was, in fact, and infringement on Universal’s copyrights.
Universal is represented by James G. Sammataro, Brendan S. Everman, and Tyler J. Rauh of Pryor Cashman LLP.
Bang is represented by Joseph T. Kohn, Kevin M. Long, Johanna M. Wilbert, Joel E. Tragesser, Shauna D. Manion, and Peter P. Klepacz of Quarles & Brady LLP.
The case is UMG Recordings Inc. et al. v. Vital Pharmaceuticals et al., case number 0:21-cv-60914, in the U.S. District Court for the Southern District of Florida.
* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright infringement, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.
Find us at our website at www.LoweLaw.com.