B.C. beauty brand battles music giant over social media copyright

Suva Beauty founder Shaina Azad announced the end of her company’s wild ride to international acclaim six months ago in a YouTube video that was met with a mixture of sadness and Reddit threads lamenting the loss of dazzling eyeshadow one fan called “a gamechanger.”

Azad — a Surrey-based makeup artist who cut her chops in film and TV — turned a passion for pigmentation into products carried in the world’s ritziest stores. But she said the bankruptcy of a major retailer and a family member’s health issues had “shifted her priorities.”

“And the world since then has continued to reveal its truths,” Azad told her followers. “And the time has now come for me to say goodbye.”

Nowhere does Azad mention a Federal Court battle that may turn out to be a lasting legal legacy for other entrepreneurs, influencers and creatives who rely on social media to make their marks.

Sony Music Entertainment Canada is pursuing Suva for millions allegedly owed for the unauthorized use of music by some of the world’s most popular artists in videos Sony claims Suva produced to build its brand.

Suva denies the claim, saying Sony doesn’t have the right to assert damages on behalf of performers like Beyoncé and Doja Cat and arguing any music used “did not comprise a substantial, vital or an essential part of the videos.”

“We’re a makeup brand,” Azad told a Sony lawyer during one deposition reviewed by CBC.

“Jingles don’t sell makeup. Makeup sells makeup.”

‘Smudge proof and transfer resistant’

According to Suva Beauty’s website, Azad started the company in 2015 — taking the name of her creation “from the vibrant and lush capital of Fiji.”

Suva’s signature product was a “smudge-proof and transfer resistant” ‘Hydra Liner’ that burst into public consciousness through the vibrant make-up artistry of the HBO teen drama Euphoria.

According to Sony’s notice of claim — Suva “largely eschewed traditional advertising,” relying instead on Instagram, Facebook, Twitter and TikTok “to promote its products and build its brand.”

The lawsuit takes aim at what Sony describes as videos pairing images of Suva’s products with at least 88 separate “commercially-released sound recordings” by artists like Travis Scott, Harry Styles and Miley Cyrus.

“The videos often depict Azad demonstrating SUVA Beauty products … In each case, the visual images are set to the soundtrack of an excerpt from a Sony Recording that generally runs the full length of the Infringing video,” the lawsuit says.

“Suva Beauty and Azad have used the Sony Recordings to enhance the appeal of Suva Beauty’s products and the commercial impact of the Infringing Videos, and thus to increase its sales and revenues.”

In separate legal proceedings, Sony claims damages could top $18 million.

The Colonel Bogey March

The lawsuit against Suva mirrors a case brought in Florida last year by Sony Entertainment against OFRA Cosmetics — another makeup brand whose popularity Sony claims has been “driven by its use of social media.”

“There’s a problem with OFRA Cosmetics’ approach,” Sony claims.

“It regularly exploits (or materially contributes to the exploitation of) videos that contain unlicensed sound recordings and musical compositions owned by record and music publishing companies.”

Intellectual property law expert Myra Tawfik says the means of communication have changed, but claimants have been making similar arguments over the unauthorized use of music since the 1930s.

The copyright owners of The Colonel Bogey March successfully sued Paramount Films in 1934 over 20 seconds of the song used in a newsreel.

A U.K. court set the standard for infringement in that case by finding Paramount had used a “substantial, a vital, and an essential part” of the song — a whistling earworm recognizable from The Bridge On The River Kwai (Dah-dum, da da da DAH DAH dum).

“Music is hard because we love it; it’s so ubiquitous, and whatever music we love is part of who we are, and it reflects us, but there is a line,” Tawfik says.

“The internet is not the wild west. It’s not a free space for people to just take the copyright works of other people and assume that they can do what they want with them just because they’re influencers or they’re on social media platforms.”

‘Have you seen a cow before?’

According to the Federal Court filings, Sony’s lawyers grilled Azad and  Suva’s chief financial officer — Azad’s husband, Trevor Haynes — at length about the use of music in the brand’s videos.

The couple maintained any music was simply “background” as a means to cover up noises in the company’s offices during recording, dismissing any suggested links between song content and product placement.

A Sony lawyer asked Azad about a video featuring the song Rubber Band Man by A$AP Ferg in which she allegedly appeared “wearing large hoop earrings that have rainbow feathers” immediately after the lyrics “diamonds shining like a rainbow.”

“You then proceed to apply makeup to your eyes drawing sort of a blended rainbow line around each of your eyes,” the lawyer said.

“I’m going to suggest to you that having heard the lyrics to the song, you went and chose jewelry and makeup to match; is that correct?”

Azad disagreed — calling Suva a “rainbow brand,” famous for its connection to the 2SLGBTQ+ community.

At another point, Haynes was asked his thoughts on correlations between content and the lyrics of the Doja Cat song Mooo!: “Bitch, I’m a cow. I’m not a cat. I don’t say meow. Bitch, I’m a cow.”

“The video is showing someone putting a line of white makeup over their eye and adding black spots to it. Do you agree it looks kind of like a cow? What she’s painting on her eye?” a lawyer asked.

“I don’t know for sure,” Haynes answered.

“Respectfully, Mr. Haynes, have you seen a cow before?” the lawyer countered.

“Would you agree that most cows are white with black spots?”

‘There will be a lot of lawsuits like this’

Jon Festinger, an adjunct professor at the University of B.C.’s Allard School of Law, says Canada has advanced laws protecting the rights of internet users — but there is a limit.

“It’s not a free-for-all. Just because you can take something off the net and move the digital bits over very easily into your YouTube video or something else doesn’t mean that’s OK,” he says.

Festinger says the same advances in technology that make widespread access to copyrighted material available have made it easy for copyright holders to scrape the internet for violations.

Copyright law is complex, he says, and most people aren’t aware of its intricacies — until they break it.

“And you’re going to get schooled in it by very powerful companies that have very deep pockets and are going to enforce their legal rights,’ he says.

The copyright claims have been playing out at the same time as Suva Beauty saw the bankruptcy of retailer Morphe — a cosmetics giant that filed documents listing Suva as a creditor it owed $400,000.

Suva Beauty appears to have removed all the videos at the heart of the battle with Sony from its various media channels, and lawyers for Azad and the company did not respond to requests for comment from CBC.

In a separate B.C. Supreme Court claim last month, Sony alleged Suva and the music giant have been in mediation for the Federal Court case.

But the music company claims Suva paid nearly $2 million in dividends last year to shareholders in a bid “to delay, hinder or defraud” creditors.

Suva has not responded to that claim. Azad could not be reached, but at the close of her video, she said farewell to fans of her brand.

“This is not goodbye forever,” she said. “It’s just a goodbye for now. And I hope to see you on my next adventure.”