Harnessing the power of social media to market products and services is now commonplace and can take many forms, including paying social media “influencers” to create content promoting products, republishing content created by non-consumers paid (known as “user-generated content”). “), and posting original content to a company’s own social media account. In the age of TikTok and Instagram Reels, that content often consists of a video synced to music.
Companies that capitalize on popular trends by using music in this way may be vulnerable to copyright infringement claims if they do not first obtain a license from the music copyright holders. A common misconception is that the use of popular music is permitted by the social media platforms themselves, such as TikTok, which allows 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 major record labels and music publishers that allow users of the platforms to sync copyrighted music. author with their videos.I
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 specify it in their terms and conditions.ii And, in May 2020, TikTok introduced its Commercial Audio Library, a library of royalty-free music pre-cleared for commercial use, “so companies don’t have to go through the lengthy licensing process themselves”.iii However, since platforms do not in most cases prevent commercial accounts from uploading or reposting videos containing popular music, it is the responsibility of account holders to ensure that such use is properly authorized.
Typically, this means obtaining – and paying for – two separate licenses for each piece of music used: one from the musical composition copyright owners and one from the sound recording copyright owners. While this can quickly become expensive, especially for a company with a strong social media presence, companies that neglect to obtain the necessary licenses can find themselves facing much more costly copyright infringement claims. For companies that don’t want to pay to license popular music, the safest course would be to stick to using royalty-free (albeit less recognizable) music available from libraries such as the commercial audio from TikTok.
Once a music copyright infringement claim is filed, a company using unlicensed music on social media would be advised to promptly remove or remove audio from the allegedly infringing content, keeping in mind any obligation to preserve infringing content under state and federal rules that may require the preservation of evidence. Failure to preserve content may subject litigants to penalties, including potentially adverse inferences that could harm the party’s chance to defeat claims, limit damages, or negotiate a favorable settlement.iv
Even in clear cases of infringement, determining the appropriate amount of damages can be a nebulous proposition. Under the Copyright Act, a plaintiff can choose between (1) statutory damages, capped at a maximum of $30,000 per infringed work, or $150,000 per work for willful infringement, and (2) actual damages plus the infringer’s profits. attributable to the offence.v One method of determining actual damages in music copyright infringement cases is to assess what a willing buyer would have paid a willing seller to license the work for its use.vi At least one court has ruled that such a decision must be based on the actual use made of the copyrighted work, even if the copyright owner would not have granted a license for that particular type of use.viii Thus, when the copyright holder seeks actual damages, fixing the amount of a hypothetical license fee is necessarily a factual investigation which must take into account, among other things, the duration of the audio clip used, the length of time the post was available to the public, and the degree to which the visual and audio components were intertwined (e.g. music simply playing in the background versus a video of someone syncing the lyrics of ‘a song).
Without comparable licenses that can be used as a suitable benchmark, it can be difficult to determine the fair market value of the use made of them. By seeking a license first, the potential licensee can determine if there is a license fee that the copyright owner would accept that the licensee is willing to pay, while avoiding the pitfalls that can arise from using without license.
I To seefor example, J. Clara Chan, Snap Strikes enters licensing agreement with Universal Music Group to bring entire catalog to Snapchathollywood journalist, June 24, 2021; Caleb Triscari, Universal Music Group signs licensing deal with TikTokThe music network, 9 February 2021; Ethan Millman, TikTok has a new deal with Sony Music to promote more Sony artistsrolling stoneNovember 2, 2020; Facebook signs ‘holistic’ licensing deal with Warner Music GroupMusic Business Worldwide, March 9, 2018.
ii See musical guidelinesFACEBOOK, https://www.facebook.com/legal/music_guidelines (last visited 13 Jan 2022) (“The use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained the appropriate licenses”).
iii Discover royalty-free music in our new audio libraryTikTok for businessDecember 16, 2021.
iv To see Fed. A. Civil. P.37(e).
v 17 USC § 504.
vi Watch Dash vs. Mayweather731 F.3d 303, 313 (4th Cir. 2013); Davis vs. The Gap, Inc.246 F.3d 152, 166, 171-72 (2nd Cir. 2001).
viii See Country Road Music, Inc. v. MP3.com, Inc., 279 F. Supp. 2d 325 (SDNY 2003); see also Davis246 F.3d at 166, n.5 (noting that “the fair market value to be determined is not that of the highest use for which the plaintiff could license, but the use made by the infringer” ).