Court Decision Indicates Advertisers May Be Vicariously Liable For Copyright Infringement From Posts By Social Media Influencers They Retain

• Published date: 21 July 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Copyright, Trials & Appeals & Compensation, Music and the Arts, Social Media
• Law Firm: Arnold & Porter
• Author: Mr Thomas A. Magnani and Melissa L. Wen

The decision in UMG Recordings, Inc. v. Vital Pharmaceuticals, Inc., 2022 WL 2670339 (S.D. Fla. July 11, 2022) involved plaintiffs' motion for summary judgment in a copyright infringement action brought by a group of music publishers and record companies against an energy drink and sports nutrition supplement company doing business as Bang Energy (Bang), and its CEO, Jack Owoc. Plaintiffs brought claims of direct and indirect infringement based on TikTok videos that featured plaintiffs' copyrighted works, some posted by Bang itself and some posted by social media influencers Bang hired to promote its products. As part of its ruling, the court held that Bang exercised the requisite control over the social media influencers with whom it contracted so as to be potentially liable for vicarious infringement based on videos posted on the influencers' TikTok accounts. The decision highlights the need for companies who use influencer marketing to seek legal advice to ensure that the social media stars they work with abide by copyright law.

Background

As is becoming increasingly common, in lieu of traditional advertising methods, such as print, TV and digital ads, Bang relies primarily on social media and experiential events for marketing. The dispute arose from Bang's activity on TikTok, a social media platform popular among Generation Z, on which content largely consists of short videos set to snippets of popular music.

Bang paid influencers to market Bang's products in videos, and obtained ownership of the videos the influencers created. In order to get paid, the influencers had to submit their videos to Bang's social media team for auditing before they were posted. The auditing team verified that the videos complied with Bang's Social Media Guidelines, which set forth certain production criteria, and a requirement that the influencers 'tag' Bang and Owoc in their TikTok posts. The Guidelines did not prohibit the use of copyrighted music, and Bang's Senior Director of Marketing did not discuss the issue with Bang's in-house legal team.

Of the videos at issue in the litigation, approximately 140 were posted by Bang and Owoc to their own TikTok accounts, and eight were posted by influencers to the influencers' TikTok accounts. Plaintiffs alleged that defendants were liable for direct infringement with respect to the videos posted to the defendants' accounts, and were liable for contributory and/or vicarious infringement with respect to the videos posted to the...