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Bang Energy’s TikTok Videos Infringed Sony’s Copyrights, Judge Says

The beverage brand said it thought that TikTok's music tools were OK to use, but a judge didn't buy it.

A federal judge says that drink 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 decision issued Wednesday, Judge William P. Dimitrouleas rejected various defenses from Bang Energy for its conduct, calling them “a boilerplate list” that was “unaccompanied by any effort at developing an argument.”

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“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.”

Combined with Judge Dimitrouleas’ ruling in July against Bang Energy over hundreds of songs owned by UMG, the two decisions potentially put the drink company on the hook for many millions of dollars in damages. Such damages will be decided in future proceedings.

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 sweeping music licenses signed by platforms like TikTok and Instagram, which allow users to feature snippets of copyrighted music in their posts, do not apply to commercial content posted by brands.

Faced with those lawsuits, Bang Energy argued that it didn’t know it wasn’t allowed to use the music in ads. They cited the fact that TikTok and Instagram make it easy to do, and claimed a TikTok rep even told them they could.

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

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 on using copyrighted content without permission,” the label’s lawyers wrote, “and that the use of any 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 Plaintiffs to Defendants to commercially use the recordings [nor] from Plaintiffs to any of the platforms that would permit 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.

An attorney for Bang Energy did not immediately return a request for comment on the decision.