Sony Music Entertainment has lodged a new copyright infringement complaint, accusing a beauty brand of “exploit[ing] a huge number of [Sony] sound recordings” to promote its products, including through the use of influencer-generated marketing. In the complaint that it filed with the U.S. District Court for the Southern District of Florida on October 31, Sony claims that OFRA Cosmetics (“OFRA”) has built a popular brand thanks, in large part, to its use of social media, including Instagram, where it has built up a sizable following using content of its own and imagery/videos created by influencers on its behalf. In particular, Sony alleges that OFRA’s social media pages are “populated with videos showcasing OFRA Cosmetics products, including branded makeup and beauty products, alongside popular copyrighted sound recordings and musical compositions.”
The problem, according to Sony, is that Florida-based OFRA “regularly exploits (or materially contributes to the exploitation of) videos that contain unlicensed sound recordings and musical compositions owned by record and music publishing companies, respectively, including at least 329 videos featuring [Sony] sound recordings, that OFRA has posted to its own social media pages.” The songs range from Michael Jackson’s “Thriller” and George Michael’s “Careless Whisper” to more recent hits like Doja Cat’s “Say So” and Lil Nas X’s “Old Town Road.”
More than merely background noise, Sony claims that its sound recordings – which “generally run the length of the [OFRA] videos and include the catchiest or most familiar parts of the tracks” –are “used to enhance the commercial impact of the OFRA videos, which capitalize on the popularity, artistry, and entertainment value of those recordings” In fact, Sony asserts that “recognizing the importance of music to social media posts and consumer engagement, the OFRA videos often specifically highlight or explicitly refer to the featured sound recording in the video’s caption.”
TLDR: OFRA “has achieved its success through blatant, willful, and repeated copyright infringement of the sound recordings and musical compositions of various content owners, including hundreds of [Sony’s] popular and valuable sound recordings,” the music giant alleges.
Influencer Marketing and Infringement
“At least some” of the 300-plus videos that appear on OFRA’s social media pages were created by the company, itself, per Song, which maintains that other videos are created by influencers, who promote OFRA products to their social media followers in exchange for “free product, a cash payment, or a share in OFRA’s sales.”
While OFRA did not create all of the videos, it is still on the hook for infringement, according to Sony, as the cosmetics company “actively reviewed, selected, copied, and re-posted numerous influencer-created videos to [its] social media pages.” Its “ability to control the infringement is evidenced by its formal contracts with influencers, which give OFRA the right and ability to terminate its relationships with influencer if they violate the intellectual property rights of third parties, and to actively review influencer content on a regular basis.” At the same time, Sony points to OFRA’s Affiliate Agreement, which states that “an influencers’ affiliate status ‘may be suspended or terminated for any reason including … [v]iolation of intellectual property rights.’”
Because OFRA “actively reviewed, selected, copied, re-posted, and shared infringing content created by its influencers,” Sony claims that it “knew or should have known of the influencers’ infringement.”
And still yet, it asserts that OFRA “induces or contributes” to the infringement by the influencers – who are not named as defendants in the case at hand – “by providing products in exchange for the creation of OFRA videos featuring such products, and a platform on which the OFRA videos can be widely shared.” In other words, OFRA’s “compensation of influencers for the creation of the OFRA videos – including by way of a portion of profits, or anything else of value – constitutes material contribution and inducement and is a proximate cause of the infringement.”
By making use of the music without authorization, Sony states that OFRA is infringing its copyright-protected materials and “rob[bing] Sony of the licensing revenues it is entitled to for use of the Sony recordings, thus undermining Sony’s investment in its artists and their recordings and depriving those artists of revenue.” As such, Sony says it has little choice but to file suit in order to hold OFRA responsible for its “substantial willful (a) direct copyright infringement of the Sony recordings, including [OFRA’s] unauthorized copying, public performance, digital transmission, distribution, and creation of derivative works, and (b) contributory and/or vicarious copyright infringement owing to the unauthorized use of the Sony recordings by various third parties discovered to date.”
The case is Sony Music, et al. v. OFRA Cosmetics, LLC, et al., 0:23-cv-62073 (S.D. Fl.)
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