“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,” the complaint reads. “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.”
Sony Music is seeking an injunction that requires Gymshark to cease infringing Sony’s copyrights; actual damages or, alternatively, statutory damages up to the maximum of $150,000 per infringed work; and costs of bringing the suit, including attorneys’ fees.
In addition to Sony Music proper, the complaint names Sony Music Latin, Zomba Recording, Arista Music, La Face Records, Records Label LLC and The Century Media Family as plaintiffs.
The complaint includes several examples of the offending ads, many of which feature athletes and other influencers lip-syncing and performing choreographed dance routines to popular songs while wearing Gymshark attire. Other ads “bear striking similarities to traditional television advertisements,” the complaint reads, including one that features a recording of the Calvin Harris track “Summer” playing over footage of models dressed in the fitness company’s “Gymshark Swim” collection in various settings. The suit claims that Gymshark employs “at least 80 influencers,” referred to as “Gymshark Athletes,” to promote the brand on social media in exchange for salaries ranging from $6,000 to $100,000 a year.
In an effort to demonstrate the importance of the music-driven social media ads to growing Gymshark’s business, a section of the complaint highlights a quote by Gymshark chief brand officer Noel Mack, in which the executive highlights Instagram specifically as “a huge part” of the company’s success.
“Gymshark has been wildly successful, largely as a result of the ubiquity and effectiveness of the infringing Gymshark Videos,” the complaint continues. It points out that Forbes recently valued the company at over $1.4 billion while underscoring Gymshark’s reported $330 million in sales in 2020 and 7 million “engaged” social media followers — a number that expands to over 60 million when factoring in the followings of the Gymshark athletes the company employs.
“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,’” the complaint adds.
The complaint sets out to establish that Gymshark’s infringement was “clearly willful” — which, if established, can increase the amount of damages owed if the company is found liable — by highlighting “expressly state[d]” anti-infringement policies on the social media platforms where the company posts its promotional content. Most pertinently, it claims that Gymshark’s head of PR and brand partnerships, Steph O’Neill, approached Sony Music about licensing a portion of the sound recording of Russ’ “The Flute Song” for one of its promotional videos late last year.
“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,” the complaint reads, “Gymshark never signed a license agreement or paid a license fee to Sony Music, and instead used the sound recording without authorization.”
An attorney for Sony Music declined further comment on the case. Gymshark did not immediately respond to Billboard’s request for comment.
As the fitness technology advances, startups are increasingly incorporating music into their products — and sometimes without the required licenses. In Feb. 2020, Peloton and the National Music Publishers Association settled a $370 million lawsuit brought by 14 music publishers that claimed the at-home fitness giant had used more than 1,000 copyright musical compositions without obtaining licenses. In January 2018, a slew of major labels sued the music and fitness app Fit Radio for failing to license their music; that case was dismissed in January 2019 with prejudice, meaning plaintiffs are permanently barred from filing the case on the same grounds again.