Kroger and 17 affiliates have asked a U.S. federal judge in California to dismiss a broad infringement suit brought by Sony Music over music used in social media advertising. The motion sets out six primary grounds, including jurisdiction and procedural flaws.
The lawsuit and its claims#
Sony Music and nine affiliated labels filed the suit in August, alleging at least 392 unauthorized uses of their recordings in social media posts made by Kroger’s affiliate brands and paid influencers.
The motion also cites the U.S. Supreme Court’s Cox v. Sony ruling. Kroger argues that the decision sets precedent that companies cannot be vicariously liable for posts by independent influencers.
Jurisdiction and delivery#
Sony’s initial complaint alleged that the companies’ products are available for delivery to California consumers through Kroger partnerships, including InstaCart and DoorDash. Kroger counters that “same-day and next-day delivery of groceries from a store in Milwaukee or Chicago to Los Angeles would be highly unlikely.”
Ownership and registration gaps#
Kroger also states that the exhibit listing the 392 songs fails to identify which plaintiff owns each recording. It estimates that 110 of those recordings cite no sound recording registration, including:
- 59 marked as pre-1972 recordings
- Five that list registrations as pending
- 21 that invoke the Berne Convention
Statute of limitations#
Kroger further argues that Sony’s claims tied to a 2020 holiday campaign license, which allegedly included The Lovin’ Spoonful’s “Do You Believe in Magic,” are time-barred under the Copyright Act’s three-year statute of limitations.
A hearing on the motion is scheduled for January 14.
