The shoe folk at DSW Shoe Warehouse have been sued once again for using pop songs in their social media posts without getting the OK from copyright owners. This time it’s Sony Music suing US shoe shop giant DSW over the alleged “rampant infringement” of copyright, following the lead of Warner Music, which filed similar legal action earlier this year.
The shoe peddler’s lawyers actually preempted Sony’s lawsuit last month – demonstrating prescience if not copyright knowledge – with their own legal filing about music in the company’s social media posts.
In it, they claimed that DSW’s marketing people simply did what TikTok and Instagram, and their music industry partners, told them to do: insert lots of music into their video posts. How were they meant to know that the social platforms’ music licences didn’t cover branded content?
But, says Sony in its new lawsuit, it doesn’t take a genius to work that out, mainly because the social media platforms told them about the restrictions. Since at least 2018, Sony points out, Instagram’s terms have said that “use of music for commercial or non-personal purposes is prohibited unless you have obtained appropriate licences”.
And since 2020, on TikTok, before business account users like DSW can post a video, they must confirm that “they own all of the rights to the music included in this video”, or “the music is in the public domain”, or “they have permission from all necessary rightsholders to use the music on the TikTok platform”.
So, when the shoe emporium was posting its TikTok videos featuring Sony pop songs, they were either “falsely representing that the infringing posts contained no copyrighted sound recordings”, or “that DSW had obtained all necessary rights and permissions” to use the music, or “fraudulently representing itself as a non-business account in order to post content featuring the Sony Music recordings”.
Or, perhaps, DSW just didn’t really know what it was doing and blithely clicked through these warnings unaware of the intricacies of music licensing. Which is basically what DSW’s own pre-emptive lawsuit suggested.
Numerous brands have now been sued by the music industry for posting promotional videos to social media without securing the necessary music licences, which they can either do by only using tracks from something like TikTok’s Commercial Music Library, or by negotiating direct sync deals with the relevant record labels and music publishers.
As Sony goes to some length to explain in its lawsuit, while Instagram and TikTok do have licences that cover the music that appears in videos uploaded to their respective platforms, those licences do not cover commercial use.
DSW’s legal filing last month – which followed Warner’s lawsuit but preempted further litigation, including Sony’s new lawsuit – asked the judge to confirm it hasn’t infringed any copyrights, because its marketing teams were misled about the ins and outs of music on the social media platforms. It seems like a very ambitious ask, given the social media companies’ terms and conditions.
And while shoe marketing people may not usually read the terms and conditions of digital platforms they use, a company with an annual marketing budget of $175,000,000 (according to Sony’s estimates) can surely be expected to have at least one legal nerd check those terms before the creative types start posting a steady stream of video ads soundtracked by current hits.
Sony wants an injunction stopping DSW’s infringing videos and lots of lovely damages.
