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Another Copyright Crisis: music, athleisure and influencers

The athletic apparel brand which has now taken over the closet of any gym fanatic has had to face an accusation of copyright infringement by the music powerhouse Sony Music Entertainment. Earlier on this year, the English company Gymshark has been taken to court in California by Sony Music which claimed that their songs had been in several videos posted by the Gymshark accounts on their social media platforms, but since these songs were never licenced a copyright infringement took place.

Sony Music accused Gymshark of ‘misusing’ songs from their most popular artists, such as Harry Styles, Britney Spears, Beyonce, and many more. Sony Music points out how Gymshark has ‘not paid for the privilege to use the sound recordings’ [1]. The list of songs which have been used unlawfully by Gymshark was presented by Sony in an exhibit and contains 297 recordings. If the music company obtains what it is requesting from the court, then each infringed recording would amount to $150,000 in damages, which multiplied by the total number of recordings in the exhibit would exceed $44M [2].

The peculiarity of this case is that many other sports apparel brands make use of music in their ads and commercials, but brands like Nike have received licences from Sony Music for their use, unlike Gymshark. The malevolent intentions of the brands lie, according to Sony Music, in the fact that Gymshark’s head of public relations had got in contact with the music company in 2020 regarding the licensing of one of their songs, and after Sony agreed in exchange for compensation, he never followed through. This is then seen as showing that the fitness company was indeed aware that a licence was necessary for use [3] [4].

Gymshark’s Tiktok (@gymshark)

Gymshark is one of the fastest-rising fitness brands also thanks to its very significant presence on social media. Most of the advertising does not take place through the traditional route but rather in the form of content on Instagram, Tik Tok and Facebook. Their success heavily relies on the use of fitness influencers who post videos and photos online featuring Gymshark apparel. The brand’s presence on social media when the case was first brought to court was of around 7 Million followers which turned into 60 Million when counting the followers of the so-called Gymshark Athletes, who are the influencers hired to promote the brand. 

Thus, the lawsuit would highly affect the way marketing of Gymshark products takes place, as currently its basis lies in the hundreds of Tik Tok and Instagram videos circulating on the platforms with songs as the background.

These platforms each have terms of service to ensure cases such as this do not take place. In fact as evidence in their case, Sony Music has pointed to the terms of service of these platforms and in how Instagram’s Terms of Service state: “Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licences”, similarly to the Tik Tok’s Terms of Service which go as follow: “NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE MADE AVAILABLE FROM OR THROUGH THE SERVICE”. 

Gymshark’s Instagram (@gymshark)

Sony also specifies that third-party influencers who have made use of the sounds have infringed the copyrights and Gymshark is thus liable for such infringements [5].

The case involves counts of federal copyright infringement, contributory infringement, and vicarious infringement and the plaintiffs have requested injunctive relief, actual damages, and the costs of their attorneys. Copyright infringement finds its legal basis in Title 17 U.S. Code §501 [6]. Contributory and vicarious infringements are both forms of secondary liability for direct infringement [7] [8].

Gymshark has till January 25 to respond to the lawsuit so the answer to this case of copyright infringement involving social media influencers lies in the future.

[The case can be found under the name “Sony Music Entm’t v. Gymshark Ltd, U.S. District Court for the Central District of California, No. 2:21-cv-05731.]

[1]

https://www.reuters.com/legal/transactional/sony-music-sues-gymshark-misusing-hundreds-songs-ads-2021-07-15/

[2]https://www.musicbusinessworldwide.com/sony-music-sues-1bn-valued-fitness-brand-gymshark-for-infringing-297-recordings-in-ads/

[3]

https://www.latestlaws.com/intellectual-property-news/copyright-infringement-battle-begins-between-sony-music-and-gymshark/

[4] https://lawstreetmedia.com/news/tech/intellectual-property/sony-music-sues-gymshark-for-commercializing-hundreds-of-songs-without-permission/

[5] https://robertfreundlaw.com/los-angeles-false-avertising-litigation-attorney/sony-musics-copyright-lawsuit-targets-influencer-tiktoks/

[6] United States Code, 2006 Edition, Supplement 4, Title 17, <https://www.govinfo.gov/app/details/USCODE-2010-title17/USCODE-2010-title17-chap5-sec501>

[7] https://www.law.cornell.edu/wex/contributory_infringement

[8] https://www.law.cornell.edu/wex/vicarious_infringement#:~:text=Vicarious%20infringement%20is%20a%20form,law%20principle%20of%20respondeat%20superior.

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