On October 31, 2023, Sony Music sued OFRA Cosmetics for copyright infringement. OFRA Cosmetics allegedly used various recordings from Sony’s catalogs in 329 videos without its permission. Notably, Sony also referenced sponsored posts by “so-called influencers” in its complaint. Sony alleged that because OFRA Cosmetics vetted and reshared these influencer posts, it should have known of the influencers’ infringement.
This isn’t the first time a record company cited a creator’s sponsored content in its lawsuit. In its 2021 copyright infringement lawsuit against Bang Energy, Sony also cited posts by social media influencers. Just as in the OFRA Cosmetics case, Bang Energy reposted influencer content incorporating Sony’s music without its permission. Sony also referenced sponsored content created by popular influencers like QPark who used the song “Gimme More” by Britney Spears in an ad for Bang. To date, we have yet to see record label companies go directly after creators for infringement.
Sony v. Ofra, 2023
By way of example, Sony cited Ofra’s use of Usher’s “Confessions” in a TikTok video announcing a new product launch, arguing that the brand profited off a false and unauthorized affiliation between Ofra and Usher (and as a result, Sony).
Creators may not believe that it’s their mess, but one contract term could make this their issue as well. They may have “indemnified” a brand from this exact lawsuit in their contracts. But the problem is that most creators don’t take this seriously.
What does indemnification or indemnity mean?
Indemnity or indemnification means an exemption from certain legal liabilities. In the brand deal context, this means one party may agree to take on the expense of certain third-party lawsuits that they caused. To be clear, an indemnity provision is NOT a promise to not sue you. I have heard this before, so it had to be said.
Generally, this contract term does not kick in until after your content goes live. It requires someone else who did not sign your contract to have an issue or legal claim after they see your content. Using the OFRA Cosmetics case, Sony was negatively impacted by the creators’ infringing use and now has a legal claim. Sony did not have a claim until they saw the infringing posts go live. So who takes responsibility for that? An indemnity provision could shift the responsibility to a creator.
So, when reviewing an indemnity provision, the questions become: How can someone else get hurt or claim injury by seeing your content? Which of those claims should I assume full responsibility for? Which ones should the brand be responsible for? Responsibility, meaning the cost of attorney’s fees, court fees, expenses, and whatever it takes to settle the claim.
Each side typically divides their respective indemnification responsibilities based on their roles. Brands are providing you products, intellectual property (think trademarks, products, logos), and money. You are exchanging IP that is supposed to be original and clear to use for a campaign—you may have incorporated music in your content.
As a result, each side generally indemnifies the other side from third-party claims that stem from their responsibilities under a contract. Some common examples include brands indemnifying influencers from product liability suits and influencers indemnifying brands from intellectual property infringement claims. These are examples, so it’s important to check your contract or consult an attorney to confirm what your indemnification provision says.
Say, for example, that after a follower watches your sponsored content about a hair iron they get electrocuted because the hair iron was faulty. They decide to sue you and the brand for product liability. Let’s assume that’s the only claim. Why would you be responsible for defending this claim, when you have no hand in the design or manufacturing of this hair iron? In this situation, an indemnity provision by the brand for product liability claims could come in handy. It could save you a lot of time and money from having to argue why this isn’t your problem and why you should not be on the hook for those damages.
What happens when an influencer indemnifies a brand?
Imagine you were one of the “so-called influencers” who collaborated with a brand on a sponsored short-form video. Your contract with this brand says that you will indemnify the brand from any third-party lawsuits related to intellectual property infringement. In that video, you decide to use a popular song to promote that brand’s product. You did not obtain a license from the record label to use the song in your ad. The campaign was a huge success.
Months later, the brand receives a complaint from a record label for copyright infringement, citing your sponsored content. For the sake of simplicity, we’ll assume that’s the only post they referenced and the only claim they have.
In that scenario, the brand would notify you that they received a complaint for copyright infringement. They would also reference the indemnity provision in your contract and basically say, “This is your problem.” Your indemnity provision could have other language about notice, selecting an attorney, and whether you can settle without their approval. So, take another look at your contract.
This should also go without saying, but this isn’t a situation where you can D-I-Y your way through a lawsuit. Consult an attorney and do NOT wait and see. There are deadlines to respond to these things and failing to abide by them could have damming consequences. Contact an attorney ASAP!
From there, this lawsuit becomes your problem. You are standing in the shoes of the brand, defending this lawsuit on their behalf. If you were not already named in the lawsuit, you may become a named defendant after you get involved. You also take on the expense of an attorney, the filing fees, and other expenses related to the lawsuit. This includes whatever settlement or damages the record label claims and is awarded by a judge.
Some takeaways
Just because music is available on a social media platform, doesn’t mean brands or influencers are legally allowed to use it.
Indemnity is a contract term that can protect you and the brand if you are proactive! Oftentimes, this is a provision that can be negotiated. So, ensure you understand what that contract term says and if any changes need to be made to protect yourself. If you have not caught on by now, I can’t outright say, “This is your game plan,” because that’s legal advice.
Cue the disclaimer.
The content discussed in this article is for educational purposes only and not for the purpose of providing legal advice. Use of and access to this article does not create an attorney-client relationship between Curator Counsel PLLC and you. The material and information presented should not be relied upon or construed as professional advice. You should not take action based on this information without consulting legal counsel.
