Bang Energy’s TikTok videos violated Sony’s copyright, judge says

Federal judge says beverage maker Bang Energy infringed Sony Music’s copyrights by using songs from Britney Spears, Harry Styles and others in hundreds of social media ads, a ruling that came two months after Universal Music Group won a similar decision against the beverage company.

In a ruling issued Wednesday, Judge William P. Dimitroulea rejected various defenses by Bang Energy for its conduct, calling them “a boilerplate” that was “unaccompanied by any effort to develop an argument.”

“It is undisputed that Defendants directly posted approximately 286 social media videos that used portions of Plaintiffs’ copyrighted works, works that neither Defendants nor the social media platforms had permission to use for commercial purposes.”

Combined with Judge Dimitrouleas’ July ruling against Bang Energy over hundreds of songs owned by UMG, the two decisions potentially put the beverage company on the hook for multimillion-dollar damages. Such damages will be determined in future cases.

Both Sony and UMG sued Bang Energy last year for using copyrighted music in social media posts without permission. The cases highlighted an important distinction: The extensive music licenses signed by platforms like TikTok and Instagram, which allow users to display snippets of copyrighted music in their posts, do not apply to commercial content posted by brands.

Faced with these lawsuits, Bang Energy argued that it did not know that it was not allowed to use the music in advertisements. They cited the fact that TikTok and Instagram make it easy to do so, and claimed that a TikTok representative even told them they could.

“At the time Bang Energy posted videos on TikTok, no warning was given that the songs TikTok provided could not be used in videos posted by companies,” the company’s lawyers wrote earlier this summer in Sony’s lawsuit. “Energy used TikTok as intended, posting videos with the music provided by TikTok.”

But Sony argued back that a misunderstanding was not a real defense, and certainly not for a “sophisticated” company like Bang Energy. “The platforms’ terms could not have been clearer regarding the prohibition against using copyrighted content without permission,” the record company’s lawyers wrote, “and that the use of music available on the platforms was limited to personal, non-commercial purposes.”

On Wednesday, Judge Dimitrouleas sided definitively with Sony, saying it was very clear that Bang had not been entitled to use the music: “There are no licenses from the plaintiffs to the defendants to commercially use the recordings [nor] from plaintiffs to any of the platforms that would allow end users of any of the platforms to use the recordings for commercial purposes.”

The judge also rejected Bang Energy’s argument that its use of the songs was a legal “fair use” of Sony’s music.

A lawyer for Bang Energy did not immediately return a request for comment on the ruling.

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