IP Law Daily, COPYRIGHT NEWS: Warner joins the other major labels in taking on Bang Energy, (Sep 19, 2022)

By Matthew Hersh, J.D.

So far, the cases have led to split decisions over secondary copyright infringement.

A popular sports drink company is secondarily liable for the infringement of copyrighted sound recordings by urging its social media influencers to post videos with those sound recordings playing in the background, a lawsuit by Warner Music contends. The lawsuit, filed in the federal court for Miami, is the third such action to be filed by a major record label in South Florida against the sports drink company and could represent the tiebreaker in so-far split decisions over whether the company was liable for secondary copyright infringement for its advertising campaign (Atlantic Recording Corp. v. Vital Pharmaceuticals, Inc., September 15, 2022).

The lawsuit involves online advertising for Bang Energy, a company that sells sports drinks, nutrition supplements, apparel, and accessories. Bang’s energy drinks are now the third highest-selling brand of energy drink in the United States, according to the complaint, and Bang achieved net sales of approximately $2.37 billion and gross profits of approximately $1.3 billion between 2017 and 2021 (over half of which, the complaint asserts, has been achieved since early 2020).

The specific target of the lawsuit is Bang’s use of social media to promote its product. According to the lawsuit, Bang encourages social media influencers—“third parties who have garnered a substantial audience of followers,” the complaint explains—to create and upload promotional videos in return for free products or monetary compensation. In addition to actively supporting the posting of these videos to influencers’ own social media accounts, the complaint alleges, Bang also reposts some of the videos to its own social media pages. Critically, the complaint asserts, many of the videos make use of sound recordings released by Warner.

Warner’s lawsuit is the third to be filed by a major record label over Bang’s energy campaign. While courts in both lawsuits have found Bang liable for its own uploads, they have differed on the question of the sport drink company’s liability for influencer uploads. In July of this year, in a ruling covered by IP Law Dailyhere ,the district court in Fort Lauderdale found that Universal Music had not shown that Bang contributed to its influencers’ uploads because the energy drink played no part in the production of those videos and did not select the music for those videos. Moreover, the court found, Bang was not vicariously liable for those videos because Universal did not introduce sufficient evidence to show that Bang profited directly from the infringement (largely because Universal waited until its reply brief to tender that evidence). But last week, in an opinion covered separately in today’s edition of IP Law Daily, the Fort Lauderdale district court found that Sony Music—in its own action against the sports drink company—had mustered the evidence necessary to meet the vicarious liability prong.

The lawsuit seeks actual damages and profits (or statutory damages in the alternative), along with attorney fees and injunctive relief.

The case is No. 1:22-cv-22951-RS.

Attorneys: Ian M. Ross (Sidley Austin LLP) for Atlantic Recording Corp.

Companies: Atlantic Recording Corp.; Vital Pharmaceuticals, Inc.

News: Copyright TechnologyInternet FloridaNews