Fashion retailer PacSun is the latest company to be sued over its use of unlicensed music in promo videos posted to TikTok and Instagram, with Warner Music filing the lawsuit.
The clothing company’s social media videos have been “instrumental to the success of PacSun”, says Warner’s legal filing, and yet it “hasn’t paid to use the copyrighted sound recordings and musical compositions that are featured in them”.
PacSun’s videos, the lawsuit continues, “include sound recordings or musical compositions performed by some of the world’s best-selling artists and songwriters, including Dua Lipa, Bruno Mars, Lizzo, Cardi B and Ariana Grande”.
Numerous brands have now been sued by the music industry for inserting pop songs into their social media videos without securing the necessary sync licences. Although TikTok and Instagram have their own licences from the music industry, those only cover user-generated content, not videos uploaded by brands.
When shoe seller DSW was sued by the majors over its pop song featuring posts on TikTok and Instagram, it claimed - somewhat dubiously - that when social media companies started encouraging users to include music in videos under their licences, it couldn’t have known the social platforms weren’t addressing brands.
In its new lawsuit, Warner is keen to stress that PacSun can’t plead ignorance of music licensing rules and copyright law when responding to this new litigation. “PacSun is a sophisticated, successful company with access to legal resources and a familiarity with intellectual property law”, the major writes.
And a lot of that IP knowledge, it goes on, comes from PacSun “actively enforcing its own intellectual property rights”. The clothing seller’s terms and conditions of its website “include robust provisions safeguarding PacSun’s intellectual property” it adds, and “PacSun has also used litigation to enforce its intellectual property rights against alleged infringers”.
Legally speaking, claims like this one are pretty straightforward, brands need licences to include other people’s music in their videos, the TikTok and Instagram licences do not cover brand content, and both platforms are pretty clear about that in their terms of service, as Warner’s lawsuit points out.
Things can be slightly more ambiguous when an influencer posts a video plugging PacSun’s products and featuring a pop song. The platform licences don’t cover those videos either, but is the influencer or the brand liable for the copyright infringement?
Elsewhere in its lawsuit, Warner is keen to stress the control PacSun exercises over the videos it pays influencers to create and upload, keen to ensure any copyright liabilities sit with the fashion firm.
That includes, it says, “providing advice and direction as to the content of the promotional videos” and “actively reviewing influencer-made PacSun videos and then promoting and/or redistributing the videos by posting them on PacSun’s own social media pages”.
Warner wants an injunction stopping PacSun from using the major’s recordings and songs in its videos, and - of course - lots of damages.