Shoe retailer DSW Designer Shoe Warehouse has filed a declaratory judgment lawsuit against Sony Music, Universal Music, and BMG.
The lawsuit, filed on Wednesday (July 9), in the Southern District of Ohio, seeks court protection from copyright infringement claims, after receiving demand letters from the music companies accusing the retailer and its subsidiaries of copyright infringement in social media posts.
The complaint arrives a couple of months after DSW and parent company Designer Brands Inc. were named as defendants in a separate copyright infringement lawsuit filed by Warner Music Group.
In Warner’s lawsuit against DSW Designer Shoe Warehouse and parent Designer Brands Inc, WMG accused DSW of having “misappropriated over two hundred” of the company’s recordings and compositions in TikTok and Instagram posts and via paid partnerships with social media influencers.
Most recently, in its legal complaint filed against Sony, UMG and BMG on Wednesday, which you can read in full here, DSW argues that the music companies have “encouraged, licensed, and allowed the very conduct about which they now complain”.
The retailer claims it has followed Instagram’s and TikTok’s standard posting procedures and used only music snippets provided by the social media platforms themselves.
“The Labels, however, now seek to pull the rug out from under DSW’s business operations,” the complaint states.
“In an about-face, the Labels have recently claimed that the very conduct that they previously encouraged and supported—i.e., incorporating samples of music into social media posts — constitutes copyright infringement when done by DSW.”
A key part of DSW’s argument centers on the terms of service of TikTok and Instagram.
The complaint claims: “The Terms of Service provided by Instagram and TikTok state that users can include music samples from Instagram’s and TikTok’s libraries when creating posts on user accounts.”
It adds: “Importantly, these Terms of Service do not distinguish between user accounts associated with individuals, businesses, or other groups or entities when discussing the incorporation of music into a post. These Terms of Service also indicate that the rights for users to incorporate music in their posts are based on one or more licenses between the platform and the relevant rights holder(s).”
(It’s worth noting here that, at the top of TikTok’s T&Cs, it states that its “Services are provided for private, non-commercial use”.)
“BMG is well known for its commitment to protecting and preserving the rights of its songwriters and recording artists, and this matter will be no different.”
Keith Hauprich, BMG
DSW is seeking a declaration that it has not infringed any valid copyrights owned by the music companies named as defendants in its lawsuit. The company argues that its social media posts are covered by license agreements between the labels and social media platforms, or that it is a third-party beneficiary of such agreements.
“The Labels’ threats to file copyright infringement lawsuits based on the DBI Entities’ lawful conduct are simply opportunistic attempts to extract still more money for copyrights on which they have already received full compensation,” the complaint alleges.
In a statement issued to MBW, Keith Hauprich, General Counsel and EVP, Business and Legal Affairs, said: “BMG is well known for its commitment to protecting and preserving the rights of its songwriters and recording artists, and this matter will be no different.”
MBW has also reached out to Universal and Sony.
The spotlight on DSW over its music usage on TikTok and Instagram follows a pattern of major music companies pursuing legal action against businesses for unauthorized use of music in social posts.
Earlier this year, Warner Music Group sued DSW, alleging the retailer had “misappropriated over two hundred” of Warner’s recordings and compositions in TikTok and Instagram posts.
Similar lawsuits have been filed against companies including Cookie giant Crumbl (sued by WMG), Chili’s restaurant chain (sued by UMG), and the University of Southern California (sued by Sony Music).
DSW operates nearly 500 stores in 45 U.S. states and argues that its business depends on brand reputation and appearance. The company states it “guards their own intellectual property carefully and respects the intellectual property of others.”
The lawsuit seeks declaratory relief, attorney’s fees, and costs, with DSW demanding a jury trial on all issues.Music Business Worldwide
