Kroger and 17 affiliates have asked a California federal judge to dismiss a copyright lawsuit brought by Sony Music and nine affiliated labels over music in social media posts. Their motion raises six grounds for dismissal, including jurisdictional and procedural objections.
The labels sued in August, alleging at least 392 unauthorized uses of their recordings in posts by Kroger affiliate brands and paid influencers. Kroger also cites the Supreme Court’s Cox v. Sony ruling to argue that companies cannot be held vicariously liable for posts by independent influencers.
Sony’s complaint said Kroger partnerships with InstaCart and DoorDash made the companies’ products available for delivery to California consumers. Kroger disputes the relevance of those arrangements, arguing that “same-day and next-day delivery of groceries from a store in Milwaukee or Chicago to Los Angeles would be highly unlikely.”
Kroger also says the exhibit listing the disputed music does not identify which plaintiff owns each recording. It estimates that 110 entries cite no sound recording registration, including 59 marked as pre-1972 recordings, five with registrations listed as pending and 21 that invoke the Berne Convention.
The companies further argue that claims involving a 2020 holiday campaign license, which allegedly included The Lovin’ Spoonful’s “Do You Believe in Magic,” fall outside the Copyright Act’s three-year statute of limitations. A hearing on the dismissal motion is scheduled for January 14.
