Last week, ABKCO Music & Records, Inc. filed suit against BEHR Paint Company over an Instagram post on the brand’s account that included The Rolling Stones song Paint It, Black.
The post was from 2022, but ABKCO claims to have only discovered it recently. The post has now been deleted. According to the complaint, BEHR refused to provide ABKCO with any information regarding authorization for the use or to engage in any dialog about it, so ABKCO sued for copyright infringement. Specifically, ABKCO claims that BEHR “reproduced, distributed, transmitted, and publicly performed, and created a derivative work of, the ABKCO Recording, none of which acts were licensed or otherwise authorized.” The damages amount is unspecified, but ABKCO claims that it regularly licenses the recording for commercial use for significant fees.
This complaint serves as a good reminder that social media posts by brands are likely commercial uses that generally require any accompanying music to be licensed directly from the rights holder. Brands are not free to do what they want any old time. The built-in platform music libraries have terms, and they generally specify that the music is available for personal, non-commercial use only. So feel free to post a picture of your dog on your personal account and add a song from The Rolling Stones without fear that Mick will want to see it painted black, but you can’t always get what you want for a brand account — at least without paying a royalty.
