Brands being sued for including unlicensed music in their social media posts is becoming a pretty common occurrence, but today it’s a Hollywood star on the receiving end of a music industry lawsuit of that kind, so that’s a bit more interesting.
Drew Barrymore has been sued by a German music company called INSTNCT for including the My Sun And Stars track ‘You Make Me Happy’ in an Instagram post flogging her recently defunct cosmetics brand FLOWER Beauty without securing the necessary permission.
INSTNCT's lawsuit links to an Instagram Reel posted by Barrymore in 2023 that is still available to stream. That post, the lawsuit states, “contains a video advertisement for the FLOWER Beauty brand synchronised” with its track, but “defendants have never been licensed to use the work for any purpose”.
Defendants in the case include Barrymore and her company, but also business partner Maesa, which calls itself a “beauty brand incubator”. Together, the lawsuit says, they “copied, publicly performed and distributed the work synchronised to a video advertisement without INSTINCT’s permission”.
INSTINCT says it owns all the rights in ‘You Make Me Happy’, which was co-written by Emma Patterson - who performs as My Sun And Stars - and Adam Specter.
Although platforms like Instagram have their own licences from the music industry, those licences only cover user-generated content, not brand content that is published to social media.
Barrymore’s Instagram post, although on her personal profile, was very much promo for FLOWER Beauty, highlighting products available as part of the cosmetics range via US supermarket giant Walmart.
Barrymore launched the FLOWER Beauty brand in 2013 and regularly promoted it via her various channels, including TV programme ‘The Drew Barrymore Show’. The brand was then discontinued last year after Maesa announced it was exiting the “colour cosmetics category”.
At the time a spokesperson said “we have been fortunate to have Drew Barrymore as a great founder partner and we are grateful for the incredible journey we have shared”.
But, it turns out, that incredible journey is not yet entirely over, given they now have this litigation to navigate together. All the defendants are liable for copyright infringement, according to INSTINCT, and should therefore be ordered to pay lots of damages.