You may have heard a mantra that is becoming more popular these days thanks to a certain presidential administration operating as a language-destroyer. It goes: “Every accusation is a confession.” The idea behind it is that when someone goes all firebrand accusing others of a thing, you often find the firebrand guilty of that very same thing. Think about all the family values politicians who end up being accused of all manner of infidelity, for example.
You find this in aggressors around intellectual property as well, with some of the most staunch defenders of their own IP rights being accused and/or guilty of violating the IP rights of others. You may recall how Crumbl, a national chain of cookie shops, aggressively sued another cookie shop over unprotectable trademark elements, such as how snugly the cookies fit in a box, or the fact that there were “whimsical drawings” on the packaging. That suit ended in a settlement with Crumbl getting some of the packaging changes it wanted, among other things. Crumbl was a bigger entity with a larger legal war chest to wield, so the trademark bullying worked.
But now the trademark bully has found itself in an eight-figure copyright lawsuit as a result of having used copyrighted music in all kinds of social media promotions.
Warner Music Group, which includes record labels like Atlantic Records and Bad Boy Records, is suing the cookie giant for copyright.
As obtained byVital Law, the complaint says that the cookie brand “has achieved its success by infringing Plaintiffs’ (Warner Music Group, etc.) copyrighted sound recordings and musical compositions on a massive scale in promotional content posted on social media platforms.”
The suit says that Crumbl used at least 159 popular songs from artists represented by Warner Music Group, including Taylor Swift, BTS, Beyoncé, and Ariana Grande. According to the complaint, Warner Music Group is asking for “$150,000 with respect to each work infringed,” which brings the total request to nearly $24 million.
You can read the complaint for yourself below, but the allegations within it are detailed, the complaint includes specific screenshot examples, and it even goes into details as to how these videos came to be. Aggressive copyright enforcement, rather than companies like WMG seeing the value to their own catalogue that this sort of thing represents, is not something I’m in favor of. However, this complaint reads very, very solid from the standpoint of the law.
Importantly, not all, or perhaps not even most, of the infringing videos were directly created by Crumbl staff. Instead, the suit details out how Crumbl engaged in a partnership campaign with social media influencers to create those videos, curated them, and then reposted or otherwise promoted the videos that included the infringing music.
Crumbl creates and posts its own promotional content on social media. It also partners with “influencers”—third parties to whom Crumbl provides “perks and rewards,”3 including the prospect of “paid initiatives,”4 in exchange for promoting Crumbl. By working with popular influencers, Crumbl draws each of these influencers’ followers to Crumbl’s social media pages and to the Crumbl Videos. Crumbl recruits these individuals—including, upon information and belief, those featured in the Crumbl Videos—to “collaborate” with Crumbl, whereby participants are rewarded for promoting Crumbl products. See https://crumblcookies.com/collaborate. Upon information and belief, Crumbl actively reviews, selects, reproduces and reposts selected influencer videos on Crumbl’s own social media pages.
There are all kinds of other problems with these influencer videos, including some of them denoting the copyrighted music as “original sounds/recordings”, as well as at least some instances of those influencers not disclosing, as required, that there is a paid relationship between them and Crumbl. But for the purposes of this suit, the main point here is that, unless rebutted by Crumbl, the company takes an active role in the curation and approval of these videos that supposedly include copyright-covered works, rather than a purely passive intermediary. And that matters under copyright law.
This one seems pretty cut and dry. Either WMG has its facts wrong in a massive, massive way, or the claim of copyright infringement is legit.
What’s most interesting is how, yet again, we have the IP bully ending up as the IP infringer.
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