Potential Pitfalls When Using Music In Social Media Marketing – Media, Telecoms, IT, Entertainment

Harnessing the power of social media to market products and services is becoming commonplace, and can take a number of forms, including paying social media “influencers” to create content that promotes products, and unpaid consumer-generated content (known as “generated content”). Users”), and post original content on the company’s social media account. In the age of TikTok and Instagram Reels, this content often consists of video synced with music.

Companies that take advantage of popular trends using music in this way may be subject to copyright claims if they do not first obtain a license from the music’s copyright owners. There is a common misconception that the use of popular music is licensed by the social media platforms themselves, such as TikTok, which enables users to easily search for and add music to videos. In fact, in recent years many of the most popular social media sites have entered into licensing agreements with several major record labels and music publishers that allow platform users to sync copyrighted music with their videos.1

However, although the terms of these agreements are a closely guarded secret, these licenses generally do not extend to commercial uses. In fact, Facebook and Instagram make this clear in their terms and conditions.2 And in May of 2020, TikTok introduced its commercial audio library, a royalty-free library of music that was previously licensed for commercial use, “so companies don’t have to go through a lengthy licensing process on their own.”3However, since in most cases the platforms do not prevent commercial accounts from uploading or reposting videos containing popular music, it is the responsibility of the account holders to ensure that any such use is properly licensed.

In general, this means obtaining and paying two separate licenses for each piece of music used: one from the copyright owners of the composition and one from the copyright owners of the sound recording. While this can quickly become costly, especially for a company with a strong social media presence, companies that neglect to obtain the necessary licenses may find themselves facing costly claims for copyright infringement. For companies that don’t want to pay to license popular music, a wiser course would be to stick to using royalty-free (albeit less identifiable) music available through libraries like TikTok’s commercial audio library.

Once a claim of music copyright infringement is confirmed, it would be prudent for a company using unlicensed music on social media to immediately remove or remove the audio from the allegedly infringing content, subject to any obligation to keep the infringing content under state and federal rules that it may Require the preservation of evidence. Failure to maintain content may subject litigants to penalties, including negative conclusions that may harm a party’s opportunity to overcome claims, limit damages, or negotiate a favorable settlement.4

Even in clear cases of infringement, determining the appropriate amount of damages can be a vague proposition. Under copyright law, the plaintiff may choose between (1) statutory damages, up to a maximum of $30,000 per infringement, or $150,000 per action in the event of willful infringement, and (2) actual damages, plus any earnings to the infringer attributable to the infringement.5 One way to determine actual damages in cases of music copyright infringement is to assess what a willing buyer would have paid to a seller willing to license the work for the use made.6 At least one court has held that such a decision must be based on the actual use of the copyrighted work, even if the copyright owner has not authorized it for that particular type of use.7 Thus, when the copyright holder seeks actual damages, determining the amount of the default license fee is necessarily a fact-specific inquiry that must take into account, among other things, the length of the audio clip used, the length of time the publication has been publicly available, and the degree of overlapping of the visual and audio components (for example, music is only playing in the background versus a video of someone syncing the lyrics).

In the absence of comparable licenses to serve as an appropriate standard, determining the fair market value of the use made can be difficult. By seeking a license in the first place, a potential licensee can determine if there is a licensing fee that the copyright holder will accept that the licensee would be willing to pay, while avoiding the pitfalls that might arise from unlicensed use.

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Notes

1 We see, for example, J. Clara Chan, Snap Strikes licensing deal with Universal Music Group to bring a complete catalog to Snapchat, the Hollywood ReporterJune 24, 2021 Caleb Trescari, Universal Music Group has entered into a licensing deal with TikTok, The Music NetworkFebruary 9, 2021 Ethan Millman, TikTok has struck a new deal with Sony Music to promote more Sony artists, Rolling Stone, November 2, 2020; Facebook signs “comprehensive” license agreement with Warner Music Group, Music Business Worldwide, March 9, 2018.

2 See music instructions, FACEBOOK, https://www.facebook.com/legal/music_guidelines (last visited January 13, 2022) (“The use of music for commercial or non-personal purposes in particular is prohibited unless you obtain the appropriate licenses.”) .

3 Explore royalty-free music in our new audio library, TikTok for BusinessDecember 16, 2021.

4 We see feed it. R. sword. p. 37 (e).

5 17 USC § 504.

6 See Dash vs Mayweather, 731 F.3d 303, 313 (4th Circuit 2013); Davis v. The Gap, Inc., 246 F.3d 152, 166, 171-72 (2d Cir. 2001).

7 See the case for Country Road Music, Inc. v. MP3.com, Inc., 279 Supplement F. 2d 325 (SDNY 2003); See also Davis, 246 F.3d at 166, n.5 (noting that “the fair market value to be determined is not the higher use that the plaintiff would have authorized but the use made by the infringer”).

The content of this article is intended to provide a general guide to the topic. It is recommended to take the advice of specialists in such circumstances.

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