Potential Pitfalls When Using Music in Social Media Marketing

Harnessing the ability of social media to market services and products is now commonplace, and may take a variety of kinds, together with paying social media “influencers” to create content material selling merchandise, reposting content material created by unpaid shoppers (often called “user-generated content”), and posting authentic content material on a enterprise’s personal social media account. Within the age of TikTok and Instagram Reels, such content material usually consists of video synched to music.

Corporations capitalizing on well-liked developments by utilizing music in this way could also be weak to claims of copyright infringement if they don’t first get hold of a license from music copyright homeowners. A typical false impression is that using well-liked music is allowed by social media platforms themselves, comparable to TikTok, which allows customers to seek for music and simply add it to movies. Certainly, most of the hottest social media websites have in latest years entered into licensing agreements with most of the main report labels and music publishers that allow the platforms’ customers to synch copyrighted music to their movies.i

Nonetheless, and though the phrases of those agreements are carefully guarded secrets and techniques, these licenses typically don’t prolong to business makes use of. Certainly, Fb and Instagram make this clear in their terms and conditions.ii And, in Could of 2020, TikTok launched their Business Audio Library, a royalty-free library of music pre-cleared for business use, “so businesses don’t have to go through the lengthy process of obtaining licenses on their own.”iii Nonetheless, as a result of the platforms in most circumstances don’t stop business accounts from importing or reposting movies containing well-liked music, the onus is on the account holders to make sure any such use is correctly licensed.

Usually, meaning acquiring — and paying for — two separate licenses for every bit of music used: one from the homeowners of the copyright in the musical composition and one from the homeowners of the copyright in the sound recording. Whereas this will rapidly grow to be costly, particularly for an organization with a sturdy social media presence, companies that neglect to acquire the mandatory licenses might discover themselves going through significantly extra pricey claims for copyright infringement. For companies unwilling to pay to license well-liked music, essentially the most prudent course could be to stay to utilizing (albeit much less recognizable) royalty-free music out there via libraries comparable to TikTok’s Business Audio Library.

As soon as a declare for music copyright infringement is asserted, a enterprise utilizing unlicensed music on social media could be clever to promptly take down or take away the audio from allegedly infringing content material, aware of any obligation to protect the infringing content material underneath state and federal guidelines that will require preservation of proof. Failure to protect the content material might topic litigants to sanctions, probably together with opposed inferences that might hurt the get together’s likelihood of defeating the claims, limiting damages, or negotiating a good settlement.iv

Even in clear-cut circumstances of infringement, figuring out the suitable quantity of damages generally is a nebulous proposition. Below the Copyright Act, a plaintiff might elect between (1) statutory damages, capped at a most of $30,000 per work infringed, or $150,000 per work in the case of willful infringement, and (2) precise damages, plus any earnings of the infringer attributable to the infringement.v One methodology of figuring out precise damages in circumstances of music copyright infringement is to guage what a prepared purchaser would have paid a prepared vendor to license the work for the use made.vi Not less than one courtroom has held that such a dedication have to be primarily based on the precise use manufactured from the copyrighted work, even when the copyright proprietor wouldn’t have licensed it for that exact sort of use.vii Thus, the place the copyright holder seeks precise damages, fixing the quantity of a hypothetical license price is essentially a fact-specific inquiry that should have in mind, amongst different issues, the size of the audio clip used, the size of time the publish was out there to the general public, and the diploma to which the visible and audio parts had been intertwined (for instance, music merely taking part in in the background versus a video of somebody lip-synching music lyrics).

Within the absence of comparable licenses to function an acceptable benchmark, figuring out the honest market worth of the use made may be difficult. By looking for a license in the primary occasion, the potential licensee can decide whether or not there’s a license price the copyright holder would settle for that the licensee could be prepared to pay, whereas avoiding the pitfalls that will come up from an unlicensed use.

FOOTNOTES

See, e.g., J. Clara Chan, Snap Strikes Licensing Deal With Universal Music Group to Bring Entire Catalogue to Snapchat, Hollywood Reporter, June 24, 2021; Caleb Triscari, Universal Music Group strikes licensing deal with TikTok, The Music Community, February 9, 2021; Ethan Millman, TikTok Has a New Deal With Sony Music to Promote More Sony Artists, Rolling Stone, November 2, 2020; Facebook Signs “Holistic” Licensing Deal with Warner Music Group, Music Enterprise Worldwide, March 9, 2018.

ii See Music Pointers, FACEBOOK, https://www.facebook.com/legal/music_guidelines (final visited Jan. 13, 2022) (“Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.”).

iii Explore royalty-free music in our new Audio Library, TikTok for Enterprise, December 16, 2021.

iv See Fed. R. Civ. P. 37(e).

v 17 U.S.C. § 504.

vi See Sprint v. Mayweather, 731 F.3d 303, 313 (4th Cir. 2013); Davis v. The Hole, Inc., 246 F.3d 152, 166, 171-72 (second Cir. 2001).

vii See Nation Highway Music, Inc. v. MP3.com, Inc., 279 F. Supp. second 325 (S.D.N.Y. 2003); see additionally Davis, 246 F.3d at 166, n.5 (noting that “the fair market value to be determined is not of the highest use for which plaintiff might license but the use the infringer made”).

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