Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 1 of 21 Page ID #:1
`
`
`
`
`
`Rollin A. Ransom, SBN 196126
`rransom@sidley.com
`SIDLEY AUSTIN LLP
`555 West Fifth Street
`Los Angeles, CA 90013
`Telephone: +1 213 896 6000
`Facsimile: +1 213 896 6600
`
`Attorney for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
` Case No.
`SONY MUSIC ENTERTAINMENT;
`SONY MUSIC ENTERTAINMENT US
`COMPLAINT FOR:
`LATIN LLC; ZOMBA RECORDING
`LLC; ARISTA MUSIC; LA FACE
`1. DIRECT COPYRIGHT
`RECORDS LLC; RECORDS LABEL,
`INFRINGEMENT;
`LLC; and THE CENTURY MEDIA
`FAMILY, INC.,
`2. CONTRIBUTORY
`COPYRIGHT
`Plaintiffs,
`INFRINGEMENT;
`3. VICARIOUS COPYRIGHT
`INFRINGEMENT
`DEMAND FOR JURY TRIAL
`
`vs.
`GYMSHARK LIMITED and DOES 1-10,
`Defendants.
`
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 2 of 21 Page ID #:2
`
`
`
`Plaintiffs Sony Music Entertainment; Sony Music Entertainment US Latin
`
`LLC; Zomba Recording LLC; Arista Music; La Face Records LLC; Records Label,
`LLC; and The Century Media Family, Inc. (collectively, “Plaintiffs” or “Sony
`Music”), by and through their attorneys, allege as follows:
`INTRODUCTION
`1.
`Plaintiff Sony Music Entertainment is one of the world’s largest music
`entertainment companies. Both directly and through its affiliated companies and
`record labels, including the other Plaintiffs, Sony Music Entertainment produces,
`manufactures, distributes, markets, sells and licenses some of the most iconic and
`popular sound recordings of all time, as well as many of today’s biggest hits
`2.
`Defendant Gymshark Limited (“Gymshark”) is a fitness apparel and
`accessories manufacturer and online retailer. Gymshark has achieved its success by
`infringing sound recordings and musical compositions belonging to a number of
`different content owners, including Plaintiffs’ copyrighted sound recordings, on a
`massive scale.
`3.
`Gymshark has largely eschewed traditional advertising, relying instead
`upon promotion of Gymshark’s products through social media sites such as Instagram,
`TikTok, and Facebook. Gymshark’s primary use of these platforms is to post videos
`showing use of Gymshark’s products. These videos feature popular sound recordings
`as an integral part of the presentation; indeed, there is typically no speaking or sound
`other than the music integrated into the video.
`4. While these social media “commercials” have been instrumental to
`Gymshark’s success, Gymshark has not paid for the privilege to use the sound
`recordings that are featured in them. As to Plaintiffs alone, Gymshark has
`misappropriated hundreds of the most popular and valuable sound recordings in the
`market, using those creative works to drive massive sales to Gymshark without any
`compensation to Plaintiffs. These works include sound recordings featuring such
`chart-topping and award-winning artists as Beyoncé, Britney Spears, The
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`2
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 3 of 21 Page ID #:3
`
`
`
`Chainsmokers, Justin Timberlake, A$AP Rocky, Travis Scott, Harry Styles, Usher,
`Noah Cyrus, and Calvin Harris.
`5.
`Gymshark created many of these videos itself. As to others, Gymshark
`partnered with “influencers”—private individuals who created the videos and posted
`them on their own pages, while at the same time providing them to Gymshark to repost
`on Gymshark’s social media pages. On information and belief, Gymshark
`compensates these influencers with free product and/or a monetary payment,
`sometimes tied to Gymshark’s sales of the product(s) featured in the influencer’s
`videos.
`6.
`Plaintiffs’ investment in recorded music is protected by copyright law,
`which grants the copyright owner the exclusive right to, among other things,
`reproduce, distribute, and create derivative works of copyrighted works, and to
`publicly perform sound recordings by means of a digital audio transmission. An
`important portion of Plaintiffs’ return on their investment in recorded music, which
`they share with their exclusive recording artists, comes from licensing recordings and
`music videos to others who use Plaintiffs’ works in videos, television shows,
`commercials, and on social media, just as Gymshark has done. Indeed, Gymshark’s
`use of Plaintiffs’ sound recordings is precisely the type of commercial use upon which
`Plaintiffs have built their robust licensing business.
`7.
`Gymshark’s conduct, in which it takes and exploits Plaintiffs’ valuable
`intellectual property without any compensation to Plaintiffs or their artists, has caused
`Plaintiffs substantial and irreparable harm. Plaintiffs bring this action to obtain redress
`for Gymshark’s infringement of Plaintiffs’ valuable rights and to prevent further
`violations of those rights.
`
`JURISDICTION AND VENUE
`8.
`The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
`and 1338(a), insofar as this action arises under the Copyright Act of 1976, 17 U.S.C.
`§§ 101 et seq.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`3
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 4 of 21 Page ID #:4
`
`
`
`9.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and 28
`U.S.C. § 1400(a).
`10. The Court has personal jurisdiction over Gymshark, including pursuant
`to Federal Rule of Civil Procedure 4(k)(2), for at least the following reasons: (1)
`Plaintiffs’ claims arise under federal copyright law; (2) Gymshark actively uses U.S.-
`based social media platforms in connection with its massive infringement of Plaintiffs’
`copyrights, and streams infringing videos through these social media platforms to
`consumers in the United States; (3) Gymshark accomplishes its infringement, in part,
`by partnering with and compensating influencers located in the United States,
`including, on information and belief, in this District, for purposes of creation,
`reproduction, distribution, and performance of the infringing videos; (4) Gymshark
`targets and attracts a substantial number of customers in the United States, and its
`infringement is an essential means of reaching, soliciting, and selling to these
`customers; (5) Gymshark maintains substantial business operations in the United
`States, on information and belief employing over one hundred people in the United
`States, including at its offices in Denver, Colorado, as well as within this District (in
`which, on information and belief, Gymshark maintains and operates its U.S.-based
`distribution center); and (6) Gymshark has operated “pop-up” stores throughout the
`United States, including in this District, featuring many of the “influencers” who
`appear in Gymshark’s infringing videos.
`THE PARTIES
`11.
`Plaintiff Sony Music Entertainment (“SME”) is a Delaware general
`partnership, the partners of which are citizens of New York and Delaware. SME’s
`headquarters and principal place of business are located at 25 Madison Avenue, New
`York, New York, and it has substantial business operations in this District.
`12.
`Plaintiff Sony Music Entertainment US Latin LLC (“Sony Latin”) is a
`Delaware limited liability company with its principal place of business at 3390 Mary
`St., Suite 220, Coconut Grove, Florida.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`4
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 5 of 21 Page ID #:5
`
`
`
`13.
`Plaintiff Zomba Recording LLC (“Zomba”) is a Delaware limited
`liability company with its principal place of business at 25 Madison Avenue, New
`York, New York.
`14.
`Plaintiff Arista Music (“Arista Music”) is a New York partnership with
`its principal place of business at 25 Madison Avenue, New York, New York.
`15.
`Plaintiff LaFace Records LLC (“LaFace”) is a Delaware limited liability
`company with its principal place of business at 25 Madison Avenue, New York, New
`York.
`16.
`Plaintiff Records Label, LLC (“Records Label”) is a Delaware limited
`liability company with its principal place of business at 25 Madison Avenue, New
`York, New York.
`17.
`Plaintiff The Century Media Family, Inc. (“Century Media”) is a
`California corporation with its principal place of business at 25 Madison Avenue, New
`York, New York.
`18. On information and belief, Defendant Gymshark is a United Kingdom
`corporation with its headquarters in Solihull, England, and substantial operations in
`the United States.
`19. On information and belief, Defendants Does 1 through 10 own, operate,
`or are employees of Gymshark, and/or are otherwise responsible for and proximately
`caused and are causing the harm and damages alleged in this Complaint. Plaintiffs are
`presently unaware of the true names and/or the involvement of the defendants sued
`herein by the fictitious designations Does 1 through 10, and for that reason sue them
`by those designations. Plaintiffs will seek leave to amend this pleading to identify
`those defendants when their true names and involvement in the infringements and
`other wrongful conduct hereinafter described are known.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`5
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 6 of 21 Page ID #:6
`
`
`
`PLAINTIFFS’ SOUND RECORDINGS
`20.
`Sony Music is home to some of the world’s most distinguished record
`labels, including Columbia Records, RCA Records, Sony Nashville, Arista Records,
`and Epic Records, through which it contracts with its world-class recording artists.
`21.
`Sony Music’s current and former artists include Adele, Beyoncé, Billy
`Joel, Bruce Springsteen, Dolly Parton, Elvis, Future, Camila Cabello, Doja Cat,
`Johnny Cash, Justin Timberlake, Khalid, Lil Nas X, Luke Combs, Mariah Carey,
`Michael Jackson, Miley Cyrus, The Chainsmokers, Usher, Whitney Houston, and Yo-
`Yo Ma.
`22.
`In addition to the well-known artists identified above, Sony Music invests
`heavily in signing and developing new artists, and in marketing and promoting their
`recordings. Sony Music generally invests on the front end of an artist’s career—
`through advances, recording, marketing, creative services, promotion, and more—
`betting that it can help the artist, and the artist’s recordings, achieve success. Sony
`Music might see a return on its investment if an artist’s recordings are commercially
`successful. However, Sony Music’s financial incentives to invest in artists and their
`music flow directly from the protections afforded by copyright.
`23.
`Sony Music exploits its sound recording copyrights through physical
`sales and digital distribution (such as downloads), as well as through licensing to third
`parties. Licensing the use of sound recordings—including for use in internet-based
`media—is a substantial revenue driver for all music companies, including Sony Music,
`especially over the last decade.
`24.
`Sony Music has licensing agreements with many types of companies. For
`example, a license to Peloton allows it to use Sony Music’s sound recordings to create
`themed fitness class videos. Sony Music has also licensed its sound recordings to
`various fitness apparel and accessories companies that compete with Gymshark,
`including without limitation Nike and Under Armour, as well as to companies in
`related markets, often including the right to use the Sony Music content on the internet.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`6
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 7 of 21 Page ID #:7
`
`
`
`Indeed, Sony Music regularly licenses its sound recordings for use in commercials,
`films, video games, and other audiovisual works, including advertisements that are
`distributed and publicly performed on company websites and on social media via the
`internet.
`25. Those who use Sony Music’s sound recordings in this manner are
`obligated to follow copyright laws and obtain permission from Sony Music.
`DEFENDANTS’ INFRINGING CONDUCT
`26. Gymshark is a fitness apparel and accessories brand, manufacturer, and
`online retailer valued at over $1.4 billion. The company is based in the United
`Kingdom, but “supported by millions of highly engaged social media followers and
`customers in 131 countries.”1 Key to Gymshark’s success has been its concerted social
`media marketing—principally on the popular Instagram, TikTok, and Facebook apps
`and websites—to increase Gymshark’s reach, caché, brand value, and sales.
`27. Gymshark’s videos on these social media sites (the “Gymshark Videos”)
`typically depict athletes wearing one or more of Gymshark’s products while exercising
`or dancing, synchronized to an audio track of a popular commercially-available sound
`recording. The audio track generally runs the full length of the Gymshark Videos and
`includes the most familiar portion of the sound recording.
`28. Gymshark created many of the Gymshark Videos itself, with the
`knowledge that the sound recordings it used were unlicensed. Other Gymshark Videos
`were initially created by social media influencers—third parties whom Gymshark
`compensates by, among other things, providing free, new, or yet-to-be-released
`products that the influencers can feature in their videos and/or by providing monetary
`compensation either directly or through commissions and/or rebates (though, contrary
`to FTC guidelines, the influencers often do not disclose that they receive compensation
`
`
`1 About Us, Gymshark, https://www.gymshark.com/pages/about-us (last visited July
`13, 2021).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`7
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 8 of 21 Page ID #:8
`
`
`
`in any form). Gymshark then actively reviewed, selected, and reposted the influencer-
`created videos on Gymshark’s own social media pages.
`29. The Gymshark Videos often actively integrate the sound recordings into
`the promotional videos, including through lip-syncing and movement choreographed
`to the sound recording. For example, Figure 1 below is a screen capture from a
`Gymshark Video promoting Gymshark’s athletic wear featuring unauthorized use of
`the Sony Music sound recording “Ride It” by Regard.
`
`FIGURE 1
`
`
`In the video, the athletes lip-sync the opening lyrics in the clip before performing a
`choreographed fitness routine to Regard’s “Ride It.”
`30. Recognizing 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 in the example shown in Figure 2 below, identifying Sony Music
`sound recording “July” performed by Noah Cyrus; that video also specifically calls
`out the Gymshark-branded products depicted in the video, with arrows pointing to the
`hat and shirt bearing the Gymshark name and stating “Look at the hat” and “Look at
`the top”:
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`8
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 9 of 21 Page ID #:9
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`FIGURE 2
`31. Other Gymshark Videos bear striking similarities to traditional television
`advertisements. These videos, which on information and belief were created by
`Gymshark with professional grade technologies, feature shots of models wearing
`Gymshark products, similar to a traditional television commercial for athleticwear, set
`to Plaintiffs’ sound recordings. For example, Figure 3 below is a screen capture from
`a Gymshark Video created by Gymshark featuring shots of female models wearing the
`“Gymshark Swim” collection at the beach and by the pool, while Sony Music’s sound
`recording “Summer,” performed by Calvin Harris, plays.
`
`
`
`FIGURE 3
`
`9
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 10 of 21 Page ID #:10
`
`
`32. Gymshark devotes substantial resources to its social media advertising
`efforts. On information and belief, Gymshark identifies popular bodybuilder and other
`fitness-focused social media influencers, and sends them free, new, or yet-to-be-
`released products for the influencers to feature in their videos.
`33. Gymshark also builds more formal relationships with some social media
`influencers, whom Gymshark deems “Gymshark Athletes.” On information and
`belief, Gymshark Athletes agree to regularly post about Gymshark on their social
`media channels and sign exclusive agreements with Gymshark. On information and
`belief, Gymshark employs at least 80 influencers as “Gymshark Athletes” with salaries
`ranging “anywhere from $6,000 to more than $100,000 per year…to live—and sell—
`the Gymshark lifestyle on social media.”2
`34. On information and belief, in addition to the compensation that
`Gymshark pays influencers who provide the content that Gymshark features on its
`social media pages, Gymshark employs professional staff whose responsibilities
`include reviewing and selecting those videos and working with and overseeing the
`influencers with whom Gymshark partners, which includes advising on content.
`Indeed, partnerships with social media influencers are so important to Gymshark’s
`business that Gymshark has announced plans to hire four full-time employees this year
`for their United States offices who will “act exclusively as scouts to find and manage
`emerging American star influencers.”3
`35. Accordingly, and consistent with the highly promotional nature of the
`Gymshark Videos, many of the Gymshark Videos feature Gymshark Athletes and
`other influencers wearing and prominently featuring Gymshark-branded apparel, as in
`the examples shown in Figure 4 (featuring Sony Music’s sound recording “Don’t Let
`
`2 Alexandra Sternlicht, How a Former Pizza Hut Delivery Guy Used TikTok and
`Instagram to Build Gymshark Into a Billion-Dollar Sportswear Brand, Forbes (Dec.
`2, 2020), https://www.forbes.com/sites/alexandrasternlicht/2020/12/02/how-ben-
`francis-used-tiktok-and-instagram-to-build-gymshark-into-a-billion-dollar-sportswear-
`brand/ (last visited July 13, 2021).
`3 Id.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`10
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 11 of 21 Page ID #:11
`
`
`Me Down” performed by The Chainsmokers featuring Daya) and Figure 5 (featuring
`Sony Music’s sound recording “Let It Go (Riot Ten Remix)” performed by A$AP
`Ferg) below.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`FIGURE 4
`
`FIGURE 5
`11
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 12 of 21 Page ID #:12
`
`
`36. Likewise, the Gymshark Videos routinely identify and promote the
`particular Gymshark apparel worn in the videos and/or specifically call out and
`promote other Gymshark products, services, or specials. For example:
`(a)
`Figure 6 below is a screen capture from a Gymshark Video
`promoting “50% off” Gymshark’s Adapt Camo Seamless
`Leggings (as worn by the athlete in the video), while Sony Music’s
`sound recording “Booty Me Down,” performed by Kstylis, plays.
`
`
`
`
`
`
`
`
`(b)
`
`FIGURE 6
`Figure 7 below is a screen capture from a Gymshark Video
`announcing that “ALL HOME WORKOUTS ARE NOW FREE
`ON THE GYMSHARK CONDITIONING APP,” and providing a
`link to the Gymshark app, while Sony Music’s sound recording
`“Casual,” performed by Doja Cat, plays.
`
`
`
`
`
`
`
`
`FIGURE 7
`
`12
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 13 of 21 Page ID #:13
`
`
`(c)
`
`Figure 8 below is a screen capture from a Gymshark Video
`announcing “Free Shipping on all stores over on gymshark.com,”
`while Sony Music’s sound recording “SexyBack,” performed by
`Justin Timberlake, plays.
`
`
`
`
`
`
`
`
`
`
`
`FIGURE 8
`37. Gymshark’s investment in social media, and in the Gymshark Videos in
`particular, has been critical to Gymshark’s success. Indeed, Noel Mack, Gymshark’s
`Chief Brand Officer, aptly described the importance Gymshark’s social media:
`Instagram is a huge part of our story because of the communities
`we create, but the challenge is always how to stand out among so
`many online businesses vying for consumers’ attention. . . . We
`have been building our following organically since day one of
`the brand, six years ago.4
`38. And Gymshark has been wildly successful, largely as a result of the
`ubiquity and effectiveness of the infringing Gymshark Videos. Forbes recently valued
`Gymshark at over $1.4 billion, and Gymshark reportedly achieved $330 million in
`
`4 How Gymshark Mastered Instagram to Drive Instant Sales, Marketing Week (Oct.
`2018),
`https://www.marketingweek.com/gymshark-instagram-black-friday-sales/
`(last visited July 13, 2021).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`13
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 14 of 21 Page ID #:14
`
`
`sales in 2020.5 Gymshark also has over 7 million engaged social media followers, and
`that number increases to “over 60[ million] followers when combined with its team of
`‘Gymshark Athletes.’”6
`39. Gymshark achieved that success through blatant, willful, and repeated
`copyright infringement of content owned by record labels and music publishers,
`including infringement of hundreds of Sony Music’s most popular and valuable sound
`recordings. These Gymshark Videos use sound recordings owned or controlled by one
`of the Plaintiffs without authorization, including widely popular recordings by some
`of Sony Music’s top recording artists.
`40. Attached as Exhibit A is an initial list of sound recordings of which the
`identified Plaintiff is the sole owner or exclusive licensee in the United States of rights
`under copyright, which rights have been infringed by Gymshark through the inclusion
`of such sound recordings in Gymshark Videos. Each listed sound recording is
`registered in the United States Copyright Office, is the subject of a filed application
`for registration with the United States Copyright Office and awaiting issuance of a
`certificate of registration (subject to the current backlog at the Copyright Office), is
`not a United States work, as that phrase is defined in the Copyright Act, or is a sound
`recording fixed before February 15, 1972, and included on a schedule filed with the
`Copyright Office pursuant to the Orrin G. Hatch-Bob Goodlatte Music Modernization
`Act. Plaintiffs’ investigation continues, and discovery is likely to reveal additional
`infringements; Plaintiffs intend to seek leave to amend this Complaint at an
`appropriate time to provide an expanded list of infringed works.
`41. Moreover, Gymshark’s infringement was clearly willful. Among other
`things, the social media platforms on which Gymshark posted the infringing Gymshark
`Videos expressly state that users have no right to infringe music, particularly in
`connection with commercial activities.
`
`5 Sternlicht, supra.
`6 How Gymshark Mastered Instagram, supra.
`14
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 15 of 21 Page ID #:15
`
`
`42. For example, the Instagram Terms of Use incorporate Music Guidelines,
`which are maintained in the “Legal” section of the Facebook website. Those Music
`Guidelines expressly provide as follows: “Use of music for commercial or non-
`personal purposes in particular is prohibited unless you have obtained appropriate
`licenses.”7
`43. Similarly, the TikTok Terms of Service unequivocally state that no rights
`are granted respecting use of sound recordings:
`
`NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND
`RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN
`THAT ARE MADE AVAILABLE FROM OR THROUGH THE
`SERVICE.8
`44. Moreover, in late 2020, Steph O’Neill, Gymshark’s “Head of PR & Brand
`Partnerships,” approached Sony Music for a license to use a portion of the Sony Music
`sound recording “The Flute Song” by recording artist Russ in connection with a video
`featuring Gymshark athlete Ryan Garcia, to be posted to Gymshark’s social media
`accounts for a limited period of time. Although this request reflected Gymshark’s
`awareness that a license was required for use of Sony Music’s sound recordings, and
`although Sony Music advised Gymshark that it would be willing to grant the license
`in exchange for compensation, Gymshark never signed a license agreement or paid a
`license fee to Sony Music, and instead used the sound recording without authorization
`and without compensating Sony Music.
`COUNT I: COPYRIGHT INFRINGEMENT
`(AGAINST ALL DEFENDANTS)
`45. Plaintiffs incorporate paragraphs 1 through 44 of this Complaint as if
`fully set forth herein.
`
`
`7 Terms of Use, Instagram, http://help.instagram.com/581066165581870
`(incorporating Music Guidelines) (last visited July 13, 2021); Music Guidelines,
`Facebook, https://www.facebook.com/legal/music_guidelines (last visited July 13,
`2021).
`8 Terms of Service, TikTok, https://www.tiktok.com/legal/terms-of-service?lang=en
`(last visited July 13, 2021).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`15
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 16 of 21 Page ID #:16
`
`
`46. Defendants’ creation, posting/reposting and/or the streaming of the
`Gymshark Videos infringes Plaintiffs’ copyrights. Among other things, Defendants
`have unlawfully reproduced, prepared derivative works from, distributed, and/or
`publicly performed by means of a digital audio transmission the sound recordings
`listed on Exhibit A in violation of 17 U.S.C. § 106(1), (2), (3), and (6).
`47. Defendants’ acts of infringement are knowing, deliberate, and willful,
`and in utter disregard for Plaintiffs’ rights.
`48. As a direct and proximate result of Defendants’ infringement of
`Plaintiffs’ copyrights and exclusive rights under copyright, Plaintiffs are entitled to
`their actual damages, including Defendants’ profits from infringement, in amounts to
`be proven at trial, pursuant to 17 U.S.C. § 504(b). In the alternative, at Plaintiffs’
`election pursuant to 17 U.S.C. § 504(c), Plaintiffs are entitled to the maximum
`statutory damages in the amount of $150,000 with respect to each work infringed, or
`such other amounts as may be proper under 17 U.S.C. § 504(c).
`49. Plaintiffs are entitled to their costs, including reasonable attorneys’ fees,
`pursuant to 17 U.S.C. § 505.
`50. Defendants’ conduct is causing, and, unless enjoined by this Court, will
`continue to cause Plaintiffs great and irreparable injury that cannot be fully
`compensated or measured in money. Plaintiffs have no adequate remedy at law.
`Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a preliminary injunction and a
`permanent injunction prohibiting the infringement of Plaintiffs’ copyrights and
`exclusive rights under copyright.
`COUNT II: CONTRIBUTORY INFRINGEMENT
`(AGAINST ALL DEFENDANTS)
`51. Plaintiffs incorporate paragraphs 1 through 50 of this Complaint as if
`fully set forth herein.
`52. As detailed above, third-party influencers who created Gymshark Videos
`have likewise infringed Plaintiffs’ copyrights, and Defendants are liable as
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`16
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 17 of 21 Page ID #:17
`
`
`contributory copyright infringers for the infringing acts of these influencers.
`Additionally or alternatively, Defendants are liable as contributory copyright
`infringers by making the Gymshark Videos available to the users and subscribers of
`the social media platforms referenced above.
`53. By promoting and/or assisting with the creation of the infringing
`Gymshark Videos and/or by causing them to be copied, made available, and
`transmitted over the social media platforms referenced above, Defendants materially
`contribute to the infringing reproduction, preparation of derivative works from,
`distribution, and/or public performance of the Sony Music sound recordings contained
`in the Gymshark Videos, including but not limited to the works listed in Exhibit A.
`Defendants have actual and constructive knowledge of such infringement, including
`actual or constructive knowledge that no Sony Music-related entity has granted the
`rights to include Sony Music’s sound recordings in such Gymshark Videos. In
`addition, Defendants have induced such infringement, including by promoting such
`infringement through the compensation paid to Gymshark Athletes and other
`influencers, by reposting the infringing videos, and by calling out infringing sound
`recordings used in the Gymshark Videos.
`54. Defendants’ acts of contributory infringement are knowing, deliberate,
`and willful, and in utter disregard for Plaintiffs’ rights.
`55. As a direct and proximate result of Defendants’ contributory
`infringement of Plaintiffs’ copyrights and exclusive rights under copyright, Plaintiffs
`are entitled to their actual damages, including Defendants’ profits from infringement,
`in amounts to be proven at trial, pursuant to 17 U.S.C. § 504(b). In the alternative, at
`Plaintiffs’ election pursuant to 17 U.S.C. § 504(c), Plaintiffs are entitled to the
`maximum statutory damages in the amount of $150,000 with respect to each work
`infringed, or such other amounts as may be proper under 17 U.S.C. § 504(c).
`56. Plaintiffs are entitled to their costs, including reasonable attorneys’ fees,
`pursuant to 17 U.S.C. § 505.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`17
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 18 of 21 Page ID #:18
`
`
`57. Defendants’ conduct is causing, and, unless enjoined by this Court, will
`continue to cause Plaintiffs great and irreparable injury that cannot be fully
`compensated or measured in money. Plaintiffs have no adequate remedy at law.
`Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a preliminary injunction and a
`permanent injunction prohibiting the contributory infringement of Plaintiffs’
`copyrights and exclusive rights under copyright.
`COUNT III: VICARIOUS INFRINGEMENT
`(AGAINST ALL DEFENDANTS)
`58. Plaintiffs incorporate paragraphs 1 through 57 of this Complaint as if
`fully set forth herein.
`59. As detailed above, third-party influencers who created Gymshark Videos
`have likewise infringed Plaintiffs’ copyrights, and Defendants are vicariously liable
`for the infringing acts of these influencers. Additionally or alternatively, Defendants
`are liable as vicarious copyright infringers by making the Gymshark Videos available
`to the users and subscribers of the social media platforms referenced above.
`60. Defendants have and have exercised the right, ability, and authority to
`control and supervise the placement of Gymshark Videos on the social media
`platforms referenced above. Defendants also have the ability to remove Gymshark
`Videos from each platform. Defendants receive a direct financial benefit from the
`infringing reproduction, preparation of derivative works from, distribution, and/or
`public performance of the Sony Music sound recordings contained in the Gymshark
`Videos, including but not limited to the works listed in Exhibit A, including (among
`other financial benefits) increased brand recognition and product sales.
`61. Defendants’ acts of vicarious infringement are knowing, deliberate, and
`willful, and in utter disregard for Plaintiffs’ rights.
`62. As a direct and proximate result of Defendants’ vicarious infringement of
`Plaintiffs’ copyrights and exclusive rights under copyright, Plaintiffs are entitled to
`their actual damages, including Defendants’ profits from infringement, in amounts to
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`18
`
`
`

`

`Case 2:21-cv-05731 Document 1 Filed 07/15/21 Page 19 of 21 Page ID #:19
`
`
`be proven at trial, pursuant to 17 U.S.C. § 504(b). In the alternative, at Plaintiffs’
`election pursuant to 17 U.S.C. § 504(c), Plaintiffs are entitled to the maximum
`statutory damages in the amount of $150,000 with respect to each work infringed,