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Relations between the music and fitness industries have never been warmer, but problems are brewing between one of the leading music companies and one of the world’s fastest growing fitness brands.
Sony Music Entertainment (SME) has filed a copyright infringement complaint against UK-born fitness clothing brand Gymshark.
The fitness company, founded by Ben Francis in 2012, was valued at around $ 1.3 billion in August last year after selling a 21% stake to US-based General Atlantic. Gymshark is currently expanding in the United States.
In a legal document filed in California Thursday (July 15), Sony Music claims that Gymshark “has achieved its success by infringing sound recordings and musical compositions owned by a number of different content owners,” including SMEs, ” on a massive scale â€. .
According to the file, Gymshark “largely avoided traditional advertising” and instead promoted its products in videos posted to Instagram, TikTok and Facebook.
These videos, the lawsuit claims, “feature popular sound recordings as an integral part of the presentation.”
Sony Music states that although these videos on Instagram, TikTok, etc. “Contributed to the success of Gymshark”, the company “did not pay for the privilege of using the sound recordings presented there”.
The lawsuit further claims that Gymshark “hijacked hundreds of the most popular and valuable sound recordings on the market.”
Some of the artists whose tracks are said to have been used without permission in Gymshark’s videos include Beyoncé, Britney Spears, The Chainsmokers, Justin Timberlake, A $ AP Rocky, Travis Scott, Harry Styles, Usher, Noah Cyrus, and Calvin Harris.
“Gymshark has hijacked hundreds of the most popular and valuable sound recordings on the market.”
Sony Music Entertainment
The lawsuit explains that many of the videos in question were created by Gymshark itself, while others were created by so-called “influencers” with whom the company has partnered.
These people, the file continues, post their videos on their own pages, “while providing them to Gymshark for reposting on Gymshark’s social media pages.”
“On Information and Belief,†adds the Sony Music file, “Gymshark pays these influencers with a free product and / or monetary payment, sometimes tied to Gymshark’s sales of the product (s) featured in the videos from the influencer “.
On page 13 of the 21-page brief, Sony Music reiterates that “Gymshark’s investment in social media, and in Gymshark videos in particular, has been essential to Gymshark’s success.”
Sony also notes that in 2018, Gymshark’s brand director, Noel Mack, explained in an interview that “Instagram is an important part of our history because of the communities we create, but the challenge is always to stand out among so many online businesses vying for consumers’ attention.
The brief, which you can read in full here, provides examples of where songs are incorporated into the fitness brand’s promotional videos and where things like lip syncing and choreographed movements are used.
The brief explains, “Recognizing the importance of music for social media posts, Gymshark videos often specifically identify the sound recording shown, as shown in Figure 1 above and in the example shown in Figure 2 below, identifying the sound recording of Sony Music. July performed by Noah Cyrus; this video also specifically calls out the Gymshark branded products pictured in the video, with arrows pointing to the hat and shirt with the Gymshark name on it and saying “Look at the hat†and “Look at the topâ€.
“Other Gymshark videos have striking similarities to traditional TV commercials. These videos, which on Information and Belief were created by Gymshark with professional grade technology, feature shots of models wearing Gymshark products, similar to a traditional sportswear TV commercial set to sound recordings. applicants.
While the Big Three have allowed Facebook-owned Instagram to allow users to use music in their videos for personal use, the lawsuit points out that Instagram’s terms of service include music guidelines, which state: “The use of the music for commercial or non-personal purposes in particular is prohibited unless you have obtained the appropriate licenses”.
TikTok, which also has agreements with the three major music companies, states in its own terms of use that “no rights are licensed with respect to sound recordings.”
Sony Music claims that at the end of last year, Steph O’Neill, head of public relations and brand partnerships at Gymshark, approached the large music company to try to obtain a license to use a sample of The song of the flute (by an artist called Russ) in a video starring Gymshark athlete Ryan Garcia.
No license was obtained, but the trail was still in use, according to the lawsuit.
“Gymshark’s offense was clearly intentional. Among other things, the social media platforms on which Gymshark posted the infringing Gymshark videos expressly state that users do not have the right to counterfeit the music, especially in the course of commercial activities.
Sony Music Entertainment
Adds Sony Music: “While this request reflects Gymshark’s awareness that a license was required for the use of Sony Music sound recordings, and although Sony Music has informed Gymshark that it would be willing to grant the license in exchange compensation, Gymshark never signed a license agreement. or paid a license fee to Sony Music, and instead used the sound recording without permission and without compensation to Sony Music.
“Gymshark’s offense was clearly intentional. Among other things, the social media platforms on which Gymshark posted the infringing Gymshark videos expressly state that users do not have the right to counterfeit the music, especially in the course of commercial activities.
Sony Music is seeking a jury trial and is seeking legal damages of up to $ 150,000 per infringing recording.
Attachment A is attached to the lawsuit, a document which details what Sony Music calls an “initial list of sound recordings” for which it alleges “the rights were infringed by Gymshark due to the inclusion of those sound recordings. in the Gymshark videos “.
There are 297 records on the list, which means that at $ 150,000 each, the maximum total damages claimed could exceed $ 44 million.Music trade around the world
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