Online Music Library Claims That University Has Infringed Its Copyright in Promotional Videos
On July 24th, Freeplay Music, LLC (“Plaintiff” or “FPM”) filed a Complaint against St. Francis University (“Defendant” or “St. Francis”) in the United States District Court for the Southern District of New York. In their Complaint the Plaintiff alleges that St. Francis infringed upon their copyright, using thirty of their songs in sixty-nine videos without proper authorization or licensing. FPM demanded a jury trial, monetary compensation, and a permanent injunction against St. Francis.
Freeplay Music LLC, an online music library, provides their catalogue of songs “for users to synchronize with audiovisual works,” but they require that all users obtain a license which matches their intended use of the songs. FPM alleges that the Defendant failed to purchase licenses before using FPM’s content. They claim that St. Francis, a private university in Loretto, Pennsylvania, used FPM’s copyrighted songs in a variety of promotional YouTube videos.
The alleged infringement involves the creation and distribution of derivative works. The Complaint explains how St. Francis’s use of each song “synchronized the song to an audiovisual work, thereby making an unauthorized derivative work in the form of a new music video” (12). In addition to this creation of derivative work, these videos were posted on YouTube, which would constitute distribution and public performance of the works. The Plaintiff explains that this unauthorized use has caused “substantial injury, loss, and damage to [FPM’s] ownership rights in its Copyrighted Music” (13). The Complaint also makes it clear that FPM had notified the Defendant of their alleged infringement, saying, “despite being on notice of their infringement, the Defendant has refused to remedy their wrongdoing” (1). The Complaint says that this failure to resolve the matter outside of court led to the lawsuit.
In addition to laying out the details of the alleged infringement, the Complaint also makes it clear that FPM doesn’t believe this use can be justified as fair use. It attempts to demonstrate that the purpose of use is not transformative, describing how “FPM makes its catalogue available on its website for users to synchronize with audiovisual works,” which aligns with the alleged purpose of use by the Defendant (4). The Complaint also focuses on the fact that, although St. Francis is a nonprofit, academic institution, their purpose for use was promotional, not educational. It claims that the Plaintiff’s songs were used in videos “advertising [St. Francis’s] sporting events and business on various online platforms” (5), a more commercial, and therefore less defensible, purpose of use. The Complaint also describes FPM’s existing licensing mechanisms, showing that licensing is available, and that this licensing is commonly used by others. These details focus on the market impact of the infringement, strengthening the claim that the Defendant’s alleged infringement damages the market for licensing FPM’s songs. By including these details in the Complaint, FPM tries to preemptively address a fair use defense.
The Plaintiff has requested a jury trial and is asking the court to grant them a permanent injunction against the Defendant, monetary damages for the alleged infringement, and payment of legal costs and attorney fees. The Complaint requests that St. Francis should be permanently banned from “reproducing, distributing, publicly performing by any means including but not limited to digital transmission, or preparing derivative works based on, or in any other way using FPM’s Copyrighted Music” (14). The Plaintiff also requests either its actual damages, which they estimate to be more than $4,500,000, or statutory damages of up to $150,000 for each infringed work (14).
The Defendant has not yet filed their Answer in response to the Complaint, but we will continue to watch this case develop and post updates here on the blog.