By: Lily Keene
Increasingly, digital products are now a part of everyday life, opening the door to a new era of marketing. With the growing popularity of social media platforms, many companies have shifted to various forms of digital marketing, including using social media “influencers” to curate promotional content for their brands. Utilizing TikTok trends as a marketing tool, brands collaborate with “influencers” to curate trending dancing or lip-syncing videos to promote their products and extend brand outreach. However, this advertising method comes with a steep price since the capitalization of these trends could lead to claims of copyright infringement. Many social media platforms, such as TikTok, are misunderstood by companies to be authorizing the use of popular music. This is because TikTok, in particular, makes searching for and adding music to videos easy.
Many of the most popular social media sites have entered into licensing agreements with major record labels and music publishers in recent years. These agreements allow the platform’s users to sync copyrighted music to their videos. Typically, these agreements do not extend their licenses for commercial uses, furthering the potential for copyright infringement: directly and vicariously. It is possible for companies that are not directly involved in an infringement to be held vicariously responsible for copyright infringement through the activities of social media influencers who promote the company’s products.
The Eleventh Circuit recently held in UMG Recordings Inc. v. Vital Pharmaceuticals, Inc. that energy drink maker, Vital Pharmaceuticals (“Bang Energy”), directly infringed copyrighted music owned by Universal Music Group (“UMG”) in its TikTok videos promoting Bang Energy products. The Eleventh Circuit held Bang Energy liable for direct infringement after Bang Energy posted videos using copyrighted music on their own TikTok account. However, the Eleventh Circuit held Bang Energy was not vicariously liable for infringing videos created by social media influencers promoting Bang Energy products on TikTok.
Universal Music Group owns catalogs of copyrighted music by artists such as Ariana Grande, Dua Lipa, and Justin Timberlake. In April 2021, UMG artists sued Bang Energy for allegedly using UMG-owned music without permission in over 100 promoted TikTok videos. The plaintiffs alleged that Bang Energy was liable because they encouraged their influencers to post the TikToks. However, Bang Energy responded by stating that they did not play a role in the music selection or production of the influencers’ videos. The plaintiffs in Vital lost on the vicarious infringement claim because they were unable to provide evidence that the defendants received financial benefit from their influencers’ promotional videos.
To succeed on a claim of copyright infringement, a plaintiff asserting a copyright infringement claim must show: (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. A claim of vicarious infringement by a third party is defined as profiting from direct infringement while declining to exercise a right to stop or limit it. The plaintiff must establish that the defendant receives a direct financial benefit from the infringement. Vicarious liability may attach even if the company was in no way directly involved in the infringing activities with the third party. These company-influencer relationships potentially establish vicarious infringement liability even if there is no direct employer-employee relationship. Vicarious copyright liability is an offshoot of respondeat superior, but vicarious liability extends beyond an employer-employee relationship to cases where a defendant has the right and ability to supervise the infringing activity and has a direct financial interest in such activities. Vicarious liability may still be established even where the defendant has no knowledge of the infringers’ activities or possesses no intent to infringe. The lines between direct and vicarious infringement are not clearly drawn. Although the influencers and Bang Energy did not have an employer-employee relationship, Bang Energy was still subject to vicarious liability for the influencers’ infringing actions.
Social media influencer created TikTok videos serve as modern-day commercials and billboards. Companies push to increase sales and brand outreach by sponsoring and negotiating brand deals with influencers. Because of the ease of adding music to videos on TikTok, influencers will unknowingly be setting up the company they are promoting for a vicarious copyright infringement suit. Companies should be mindful of the licensing agreements between record companies and social media platforms. Additionally, companies should make an effort to educate their influencers about the potential risks of straying away from royalty-free music sourced through platform libraries such as TikTok’s Commercial Audio Library since the music licenses do not usually extend to commercial usage.
As social media continues to grow, companies will likely be vulnerable to vicarious copyright infringement lawsuits for their influencers’ content on social media platforms without taking precautions to understand the music licensing agreements social media platforms provide. How companies will regulate and closely monitor their social media content to avoid copyright liability will likely be a tough feat.
Student Bio: Lily Keene is a second-year law student at Suffolk University Law School. She is a staff writer for the Journal of High Technology Law. She graduated from the University of New Hampshire with a Bachelor of Arts in Communication with a focus in Business.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
