Sony Music sues $1bn-valued Gymshark for copyright infringement

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Relationships between the music and fitness industries have never been so easy – but trouble is brewing between one of the big music companies and one of the fastest growing fitness brands in the world.

Sony Music Entertainment (SME) has filed a copyright infringement lawsuit against UK-born fitness apparel brand Gymshark.

The fitness company, founded by Ben Francis in 2012, was valued at around $ 1.3 billion in August last year after it sold a 21% stake to US-based General Atlantic. Gymshark is currently expanding into the United States.

In a legal document filed in California on Thursday (July 15), Sony Music alleged that Gymshark “achieved its success by violating the sound recordings and musical compositions of a number of different content owners”, including SMBs, “on a massive scale”. .

According to the file, Gymshark “largely eschewed traditional advertising” and instead promoted its products through videos posted on Instagram, TikTok and Facebook.

These videos, according to the lawsuit, “contain popular sound recordings as an integral part of the presentation”.

Sony Music claims that while these videos on Instagram, TikTok, etc. “contributed to the success of Gymshark,” the company “did not pay for the privilege of using the audio they contain”.

The lawsuit further alleges that Gymshark “misappropriated hundreds of the most popular and valuable recordings on the market.”

Artists whose tracks have allegedly been used in Gymshark’s videos without permission include Beyoncé, Britney Spears, The Chainsmokers, Justin Timberlake, A $ AP Rocky, Travis Scott, Harry Styles, Usher, Noah Cyrus, and Calvin Harris.

“Gymshark misappropriated hundreds of the most popular and valuable recordings on the market.”

Sony music entertainment

The lawsuit states that many of the videos in question were created by Gymshark itself, while others were created by so-called “influencers” with whom the company worked.

These people, the filing went on, post their videos on their own pages “while simultaneously making them available to Gymshark to republish on Gymshark’s social media pages.”

“To the best of its knowledge,” adds Sony Music’s submission, “Gymshark pays these influencers with free products and / or a cash payment that is sometimes tied to Gymshark’s sales of the products shown in the influencer’s videos” .

On page 13 of the 21-page submission, Sony Music reiterates that “Gymshark’s investments in social media, and especially in the Gymshark videos, were critical to Gymshark’s success”.

Sony also notes that Gymshark’s Chief Brand Officer, Noel Mack, stated in a 2018 interview that “Instagram is a big part of our history because of the communities we create, but the challenge is always to stand out from so many online Businesses stand out that are vying for consumer attention ”.

The archive, which you can read in full here, shows examples of where songs are incorporated into the fitness brand’s promotional videos, and where elements like lip-syncing and choreographed movements are used.

The filing states: “Given the importance of the music to the social media posts, the Gymshark videos often specifically identify the featured sound recording, as shown in Figure 1 above and the example in Figure 2 below, which is the Sony sound recording Identify Music from July performed by Noah Cyrus; This video also explicitly mentions the Gymshark branded products shown in the video, with arrows pointing to the hat and shirt named Gymshark and “look at the hat” and “look at the top”.

“Other Gymshark videos have striking similarities with traditional television commercials. These videos, which Gymshark has made with professional technology to the best of its knowledge and belief, show footage of models wearing Gymshark products, similar to a traditional sportswear television advertisement that is tuned to plaintiffs’ sound recordings. “

While all three major labels licensed Instagram-owned by Facebook to allow users to use music in their videos for personal use, the lawsuit indicates that Instagram’s Terms of Service include music guidelines that read, “The use of Music for commercial or non-personal purposes in particular is prohibited, unless you have obtained appropriate licenses ”.

TikTok, which has also done deals with all three major music companies, makes it clear in its own terms of use that “no rights are licensed in relation to sound recordings.”

Sony Music claims that Gymshark’s Head of PR & Brand Partnerships, Steph O’Neill approached the big music company late last year for a license to use a clip of The Flute Song (by an artist named Russ) in a video with Gymshark to get athlete Ryan Garcia.

No license was obtained, but the route was used anyway, according to the lawsuit.

“Gymshark’s violation was clearly deliberate. Among other things, the social media platforms on which Gymshark posted the illegal Gymshark videos expressly point out that users have no right to violate music, especially in connection with commercial activities. “

Sony music entertainment

Sony Music adds, “Although this request reflected Gymshark’s awareness that a license is required to use Sony Music’s sound recordings, and although Sony Music has informed Gymshark that it would be willing to grant the license in exchange for compensation Gymshark has never signed a license agreement or paid a license fee to Sony Music and instead used the sound recording without permission or compensation from Sony Music.

“Gymshark’s violation was clearly deliberate. Among other things, the social media platforms on which Gymshark posted the illegal Gymshark videos expressly point out that users have no right to violate music, especially in connection with commercial activities. “

Sony Music is demanding a jury trial and asking for damages of up to $ 150,000 per injured recording.

The lawsuit is annexed A, a document describing what Sony Music calls an “initial list of sound recordings” alleging that “Gymshark’s rights have been infringed by the inclusion of such sound recordings in Gymshark videos” .

There are 297 shots on the list, meaning the maximum total damages at $ 150,000 each could exceed $ 44 million.Music business worldwide

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