The latest company to be sued for using music in TikTok and Instagram videos without getting the right licences is Crumbl, the North American chain of cookie sellers whose self-proclaimed status as “one of the fastest-growing dessert companies nationwide” is often attributed to its strong social media marketing. But, says Warner Music, that social media marketing was fuelled by copyright infringement.
Crumbl has been “wildly successful” in building its brand through online content, Warner says in a new lawsuit, resulting in “millions of followers across social media platforms” and “earning hundreds of millions of dollars in revenues, to the point where Crumbl was recently estimated to have a market value of as much as $2 billion”. However, the cookie seller “achieved that success through blatant, willful and repeated copyright infringement”.
The major has identified at least 159 recordings and songs that it controls that have been used in promotional videos for Crumbl without permission, including - it says - music from some of its “top recording artists and songwriters”.
There is now a steady stream of lawsuits being filed against brands who have used music in social media videos without licence. Although TikTok and Instagram both have music licences, those licences only cover user-generated content. Brands must source music for their social media videos from either things like the TikTok Commercial Music Library - which is set up for that purpose - or by negotiating traditional sync deals with the relevant record labels and music publishers.
The same is also true of social media creators and influencers who are paid to post content by brands, although there has been some debate in the past as to whether the brand itself can be held liable for that copyright infringement. In this new lawsuit, Warner goes to some length to explain how much Crumbl marketeers “directly work with and oversee social media influencers”, which is obviously an attempt to hold the company liable for the unlicensed music featured in those videos too.
Crumbl’s use of unlicensed music is particularly annoying, Warner explains, because the music plays an integral part in many of its videos. These promotional posts, it says, “typically depict an individual promoting one or more of Crumbl’s products, synchronised to an audio track of a popular sound recording. Often, it adds, “there is no speaking or sound other than the copyrighted musical works”.
Some of the videos highlight the track or quote lyrics from the song in their captions, further demonstrating that the music is a crucial part of the content. And where the track is adding extra value, the rightsholder should be able to command a higher sync fee, which is why labels and publishers don’t include brand use when issuing catalogue-wide licences to the social platforms for user-generated content.
“Furthermore”, the lawsuit adds, “many recording artists and songwriters do not permit their musical works to be used in social media advertising or are extremely selective about such uses”. Which means getting permission to use a Warner track “can be extremely valuable” because it would “not allow those musical works to be used by everyone who desires a licence”.
The lawsuit also briefly discusses what has become quite a challenge for labels and publishers who are seeking to police the use of their music in brand videos on TikTok and Instagram, which is tracking brand-commissioned influencer-posted content.
It’s easier to identify and deal with brands posting videos containing uncleared music onto their official channels, but with influencer content, there can be huge numbers of videos and they can be harder to distinguish from actual user-generated content.
“There are many more infringing videos created by Crumbl and its social media influencers” than those identified in the legal filing, Warner notes, adding that it has “thus far been unable to discover all infringing videos”.
Influencers not following the rules exacerbates that problem, it then claims, adding, “contrary to Federal Trade Commission guidelines, many of those influencers do not disclose that they are being compensated by Crumbl for the advertisement”.
With all that in mind, Warner wants an injunction stopping Crumbl and its influencers from using its music without licence. And, of course, it wants Crumbl to be forced to hand over lots and lots of damages because, when you blatantly, willfully and repeatedly infringe copyrights, that’s how the cookie crumbles.
And the fact I got through nearly this whole article without employing that idiom deserves some sort of prize. Or at least a free cookie.