Potential Pitfalls When Using Music In Social Media Marketing

• Published date: 27 January 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts, Social Media
• Law Firm: Katten Muchin Rosenman LLP
• Author: Ms Leah E.A. Solomon

Harnessing the power of social media to market products and services is now commonplace, and can take a number of forms, including paying social media "influencers" to create content promoting products, reposting content created by unpaid consumers (known as "user-generated content"), and posting original content on a business's own social media account. In the age of TikTok and Instagram Reels, such content often consists of video synched to music.

Companies capitalizing on popular trends by using music in this manner may be vulnerable to claims of copyright infringement if they do not first obtain a license from music copyright owners. A common misconception is that the use of popular music is authorized by social media platforms themselves, such as TikTok, which enables users to search for music and easily add it to videos. Indeed, many of the most popular social media sites have in recent years entered into licensing agreements with many of the major record labels and music publishers that permit the platforms' users to synch copyrighted music to their videos.¹

However, and although the terms of these agreements are closely guarded secrets, these licenses generally do not extend to commercial uses. Indeed, Facebook and Instagram make this clear in their terms and conditions.² And, in May of 2020, TikTok introduced their Commercial Audio Library, a royalty-free library of music pre-cleared for commercial use, "so businesses don't have to go through the lengthy process of obtaining licenses on their own."³ However, because the platforms in most cases do not prevent commercial accounts from uploading or reposting videos containing popular music, the onus is on the account holders to ensure any such use is properly licensed.

Generally, that means obtaining ' and paying for ' two separate licenses for each piece of music used: one from the owners of the copyright in the musical composition and one from the owners of the copyright in the sound recording. While this can quickly become expensive, especially for a company with a robust social media presence, businesses that neglect to obtain the necessary licenses may find themselves facing considerably more costly claims for copyright infringement. For businesses unwilling to pay to license popular music, the most prudent course would be to stick to using (albeit less recognizable) royalty-free music available through libraries such as TikTok's Commercial Audio Library.

Once a claim for music copyright...