The parent business of Bang Energy, Vital Pharmaceuticals, was the target of separate lawsuits last year from Universal Music Group and Sony Music Entertainment for the alleged use of their music in social media advertisements.
A Florida court ruled in July that Bang had misused UMG’s copyrights by exploiting the label’s music in social media advertisements without authorization.
The verdict in the legal dispute between Sony Music and Bang Energy will be announced this week.
Sony Music’s move for partial summary judgment has been “granted in part and refused in part,” according to a Florida court’s Wednesday (September 14) order that was obtained by MBW.
In August 2021, SME began legal action against Bang. In April 2021, Universal began its own proceedings.
Following another copyright infringement case brought by Sony Music in July 2021 against Gymshark, a UK-based fitness gear company, for the use of copyrighted music in advertisements on platforms like TikTok and Instagram, came SME’s Vital Pharmaceuticals complaint.
Bang Energy, the defendant in the most recent action, “has directly broadcast at least 286 videos that comprise the recordings in question” on various social media accounts across TikTok, Instagram, YouTube, Facebook, and Triller, according to the judgement announced this week.
The statement continues, “Plaintiffs have not granted Defendants any licenses to use the recordings for commercial purposes.
Furthermore, none of the platforms have received licenses from the plaintiffs that would allow their customers to use the recordings for profit.
Bang has sold more than 100 million units of its energy drinks and generated more than $1 billion in gross revenue since 2017, according to the “Omnibus Order” that was submitted by a Florida court this week and signed by U.S. District Judge William Dimitrouleas. This makes Bang the third-largest selling energy drink in the US.
The statement states that the company spends “tens of millions of dollars annually on its promotion through social media” and that “Bang’s success is backed by its marketing methods that appeal to its consumers.”
The court explains its decision to grant Sony Music’s motion for partial summary judgment as to “Count I” in the document, which you can read in full here. This decision relates to “the issue of liability on their claims against Defendants for direct infringement,” or for videos directly posted by Bang on its own channels.
According to the court ruling, Bang “does not dispute that they have directly posted approximately 264 films employing portions of Plaintiffs’ copyrighted works” on the first count for direct infringement.
However, Bang did make an attempt to refute Sony’s “proof of direct infringement with respect to 22 of approximately 286 videos”.
The beverage manufacturer claimed that 22 of the videos contained “remixes, contained a different tempo, were sung by an artist other than the artist in the original work that Plaintiff produced, were not part of the uploaded video, were of a very short duration, and/or were unrecognizable in the video.”
The argument was rejected by the court, which noted that “based on the foregoing, it is undisputed that Defendants directly posted approximately 286 social media videos utilizing portions of Plaintiffs’ copyrighted works, works neither Defendants nor the social media platforms were authorized to use for commercial purposes.”
With regard to “Count II,” Sony claimed that Bang is responsible “for contributory and/or vicarious copyright infringement” for videos shared by influencers that feature Sony music.
In response to each of these arguments, the Court determined that Sony is qualified for summary judgment “as to the issue of liability on their claims against Bang for vicarious infringement, but are not qualified for summary judgment as to the issue of liability on their claims against Bang for contributory infringement.”
According to the court document, Sony claimed that Bang is “liable for contributory copyright infringement because the undisputed facts demonstrate that Bang knew or had reason to know of the Influencers’ infringements and in fact materially contributed to the Influencers’ infringements.” This claim relates to “contributory infringement,” and Sony claimed that Bang is “liable for contributory copyright infringement.”
However, Bang Energy contended that “knowing of the videos is not the same as knowledge of the infringement” and that “there is evidence from which a reasonable juror could infer Bang reasonably believed that the Influencers’ use of Plaintiffs’ copyrighted works was not unlawful.”
The Court opted not to grant Sony summary judgment for contributory infringement while agreeing with this viewpoint.
The court stated that “vicarious infringement requires both a direct financial benefit from the direct infringement and the ‘right and ability to supervise a party responsible for direct infringement'” in reference to Sony’s claims against Bang for “vicarious infringement,” for which Sony was granted a summary judgment.
Bang asserted that Sony failed to provide “any information that would tend to prove that Defendants have any kind of legal right, much less practical power, to prevent influencers from posting the allegedly infringing videos.”
The court rejected this claim based on “undisputed material facts.” Additionally, the court stated that “it is obvious from the record that Bang derived a direct financial benefit from the infringement.”
The court ultimately rejected Bang Energy’s request for summary judgment. Bang’s claim that Sony “cannot prove actual damages nor a causal relationship between the infringement and Bang’s earnings, and thus that Plaintiffs cannot obtain damages” under copyright law was rejected by the Court in its own summary judgment motion.
In order to avoid summary judgment, the court stated that Sony “presented adequate proof of a causal connection between the infringement and Bang’s profits.”
“Defendants’ contention that such gains are attributable to other circumstances would more appropriately be presented to the jury at trial,” it continued. Additionally, Defendants have not given any authorities, and the Court is not aware of any that mandate that Plaintiffs present an expert on causation in order to challenge a summary judgment.
Therefore, summary judgment is due to be refused since Bang has not established that there is no genuine dispute as to a substantial fact regarding actual damages or causation.