By Isaiah Poritz
The music industry’s legal crackdown on brand owners that use unlicensed songs in social media posts sends a warning for companies looking to capitalize on the explosive growth of
The upstart energy drink maker Bang achieved enormous marketing success through its aggressive and flashy social media strategy that used popular influencers to advertise its drinks on TikTok and
But the company didn’t obtain a license to use the music in more than 100 of its videos, and it was hit with copyright lawsuits from all three of the major US record labels. A federal judge this year ruled in favor of the labels in two of those cases.
Other social media-driven brands are facing similar liability. Labels and publishers under Warner Music Group Corp. recently sued UK-based makeup and skincare company Iconic London Ltd. for copyright infringement based on TikTok and Instagram posts.
“There’s an assumption that just because music is available on a social media platform through one of its music libraries, that availability means it must be permissible to be used in any capacity,” said Robert Freund, an attorney specializing in advertising and social media marketing. “That’s not the case.”
TikTok, which has more than a billion monthly active users, first rose to popularity for its “hashtag” challenges and viral dance trends synchronized to the top music hits of the day.
Most creators can include those songs in their videos without fearing a lawsuit. TikTok has inked licensing deals with the three major record labels, Warner Music Group Corp., UMG Recordings Inc., and Sony Music Entertainment, that allow ordinary creators to access a vast audio library.
But when an account belongs to a verified brand, or if an influencer is using TikTok to promote a product, the legal dynamic changes.
The broader music library, according to TikTok’s terms of service, is restricted to “personal, non-commercial use.”
When Freund tells his clients about the licensing issues, or when he posts about it on his own social media, he said he’s found that many people aren’t reading the fine print.
“I think there’s confusion in the market about what you can and can’t do with music and what the potential consequences are,” he said.
In the eyes of the law, parts of the copyright suits against Bang were cut and dry. Bang used songs from artists like Ariana Grande, Billie Eilish, and Drake to promote its products without obtaining a license from the copyright holders.
In July, US District Judge
Warner filed a lawsuit against the drink maker that same month. The cases have been paused after Bang filed for bankruptcy.
Court filings show that TikTok operates two different music libraries. Its general music library contains songs from catalogs of the largest record labels, but is reserved only for ordinary users.
The commercial library, which TikTok rolled out in May 2020, contains more than half a million pre-cleared songs that brands can use freely. But that library doesn’t contain the most sought-after songs owned by the record labels, and many brands have complained that it prevents their videos from catching onto the latest TikTok trends.
“There are clearly players in this space who are treating the use of music in these videos as a garden variety social media post, when really they should be treating it more like a traditional commercial,” said Joseph Fishman, a music law professor at Vanderbilt University School of Law
Bang argued that TikTok allowed the company to use the general music library, but the judge was unconvinced. Copyright violations are strict liability, Fishman noted, so Bang can be held liable even if it didn’t realize it was infringing.
TikTok and Bang didn’t respond to Bloomberg Law’s request for comment. The record labels also didn’t immediately return requests for comment.
In the UMG case, the judge said he couldn’t determine whether Bang should face additional liability because it hired popular TikTok personalities to make their own promo videos with unlicensed music. Whether Bang knew its influencers were violating copyrights does matter in determining secondary liability.
“There is still a lot of uncertainty” when it comes to personal brands and content creators, Clarissa Harvey, a brand and trademark attorney, said. An influencer might make a non-sponsored product tutorial, but still make money indirectly from the social media platform.
“Where is the line drawn between ‘commercial’ and ‘personal’ use?” she asked. “When there is no ‘direct financial benefit’ how we classify use becomes less clear.”
How could a brand use a trendy song without fearing a lawsuit? The current music licensing regime doesn’t make it easy.
Under copyright law, a single song has two different copyrights: one protects the sound recording, the other protects the musical composition, which includes the lyrics and sheet music.
Those copyrights are often owned by separate entities, so a brand owner would need to obtain licenses from both rights holders. Record labels generally own the sound recording, while music publishers represent the songwriters who own the lyrics.
“If you think about a popular hit song at the moment, there might be five or 10 co-writers, each of whom has a different publisher,” said Mark Tavern, a music licensing executive and lecturer at the University of New Haven. “So that situation can become super difficult.”
In certain licensing contexts, rights organizations can provide a “blanket license” that covers millions of songs without ever needing to seek permission from each owner. But that isn’t the case when music is combined with a video.
“The fact that this involves synchronization with video, so-called sync licenses, takes this outside the realm of compulsory licenses and into a free market of individually negotiated and bargained-for licenses,” Fishman said.
There are organizations that compile royalty-free music that is cleared for use in advertising. Like TikTok’s commercial library, those catalogs won’t contain the top hits.
“You probably won’t get the same reach on social media, the same engagement, and it’s not as great from a marketing perspective,” Freund said. “But that’s the safest place to be.”
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By Isaiah Poritz