District court awards record companies and music publishers summary judgment on direct copyright infringement claims against energy drink company based on videos with unlicensed music posted to company’s TikTok account, but not on contributory and vicarious infringement claims based on videos posted to influencers’ TikTok accounts.

Plaintiffs—several record companies and music publishers affiliated with Universal Music Group—sued the energy drink and sports nutrition supplement company Vital Pharmaceuticals Inc., d/b/a Bang Energy, and its chief executive officer, Jack Owoc, for direct, contributory and vicarious copyright infringement stemming from dozens of videos posted to Bang’s TikTok account and the accounts of various TikTok influencers with whom Bang partnered. The videos allegedly used unlicensed sound recordings and musical compositions owned or controlled by plaintiffs.

Bang primarily markets its products through social media and experiential events rather than using traditional marketing methods such as print advertising, billboards, commercials or digital ads. As part of its marketing efforts, Bang contracts with social media influencers who have substantial social media followings; the influencers create videos and market Bang’s products on TikTok and other platforms. Bang considers its influencers’ videos to be advertisements for Bang, and influencers are instructed to submit their videos to Bang for auditing as a condition of payment. Bang reviews the videos, including the music therein, before they are posted to ensure compliance with its social media guidelines. Those guidelines require, among other things, that influencers tag Bang and Owoc in their videos in order to increase the company’s and Owoc’s social media profiles, and they do prohibit the use of copyrighted music in the videos.

Plaintiffs and defendants separately moved for summary judgment on the issue of liability for direct copyright infringement and for contributory and/or vicarious copyright infringement. The district court granted in part and denied in part each motion. As to direct infringement, the court held plaintiffs were entitled to partial summary judgment on the issue of liability. The court found no genuine dispute that plaintiffs owned the copyrights in and to the sound recordings and musical compositions at issue and that portions of the works were used in 140 videos posted to Bang’s account. The court deemed the material facts underlying the direct infringement claim to have been admitted by defendants, who, according to the court, submitted noncompliant responses to plaintiffs’ statement of undisputed material facts despite “multiple admonishments and additional opportunities” to cure.

The court denied summary judgment to plaintiffs on their contributory and vicarious infringement claims, which targeted eight videos posted to influencer TikTok accounts. As to contributory infringement, plaintiffs argued that Bang encouraged and induced its influencers to incorporate plaintiffs’ music into their TikTok videos. Defendants countered that they played no part in the production of third-party influencer videos or in the selection of music included therein, and the court found that plaintiffs failed to refute this evidence.

As to vicarious infringement, the court held that plaintiffs demonstrated Bang possessed the requisite control over the influencers’ conduct insofar as it had the right and ability to stop or limit the influencers’ direct infringement, based on its review of the videos beforehand and its ability to withhold payment. But, according to the court, plaintiffs did not demonstrate that Bang received a direct financial benefit from the influencers’ direct infringement. Although plaintiffs argued that Bang dramatically expanded its social media reach and increased its profit through the influencer videos, according to the court, plaintiffs did not submit evidence substantiating this argument until their reply submission, and the court declined to consider it.