The rise of short-form video content on platforms like Instagram, TikTok and YouTube have made these social media sites powerful tools for companies to enhance brand identity, drive sales and engage with consumers. While participating in viral trends and video challenges requires careful consideration of intellectual property rights, especially regarding music choice, companies also need to be mindful of older content, as past posts featuring unlicensed music or other copyrighted material could still pose significant legal risks.
In recent years, copyright owners have gained access to powerful web-scraping and artificial intelligence tools that make it easier to find and flag old content. This means that businesses could be at risk for using music, sound clips or other copyrighted materials without the proper licenses, even in content shared months or years ago—long before these tools became available.
All songs and sounds on social media generally carry some level of copyright protection. However, some uses are protected under personal-use blanket licensing agreements secured by the specific social media platform, while others may be protected under statutory fair use principles. But for companies and brands posting on social media, using songs under blanket licenses or fair use is more complicated and can lead to legal issues. Now more than ever, it’s important to take a proactive approach to ensure all your past content containing copyrighted material is properly licensed, and if not, consider editing or removing those old posts. Think of it like a “tune-up” for your social media. Not sure where to start? Here is a simple framework to follow:
1. Stay Smart About Music Choice
When making a new post, it is tempting to select a trending song from the social media platform’s library of music, where the platforms themselves have secured licenses from these publishers and record companies for content creators to use. However, many of these licenses are for personal use only and do not cover commercial uses. Further, it is the user’s responsibility to be sure the use of a song is proper. In other words, while posting about your latest vacation on your personal social media page using the song that Instagram suggests may likely be OK, posting an advertisement or promotion on your business page using that same song may require additional licensing.
In the ever-changing social media landscape, it is important for the user to be aware of each platform’s current terms of music use. Some platforms may have a specific commercial music library, whereas others may not make a distinction. Unfortunately, the platforms themselves have little incentive to ensure that users are not inadvertently using unauthorized copyrighted content. Platforms are often protected from legal liability through Digital Millennium Copyright Act (DMCA) Safe Harbors. Before you rely on the built-in video editing tools to select music and sounds for your video, it is important to review the platform’s music use terms and conditions. And, as a matter of best practices, you may want to consult a lawyer.
2. Continuously Audit Your Brand’s Social Media Platforms
Unless your brand was created recently, you’ve likely had a social media presence for a while now, maybe even before social media companies created music-use distinctions between personal and business accounts. If that’s the case, it is important to consistently conduct audits of social media use to catch any possible infringement from the past.
Although the U.S. Copyright Act contains a three-year statute of limitations, most courts apply the “Discovery Rule,” in which a claim accrues when the plaintiff discovers, or with reasonable diligence should have discovered, the infringement—even if that occurs more than three years after the infringement occurred.
Ultimately, whether or not the statute of limitations applies to bar a claim of copyright infringement is a highly fact-intensive analysis under the Discovery Rule. Nonetheless, it is still important to be aware of your brand’s social media history. Social media posts may only have a very short active engagement lifespan, but they can stay on your page forever if you don’t delete them. While these older posts may not be getting any new, organic engagement, newer technologies, such as digital fingerprinting, artificial intelligence and web-scraping tools,make it possible for copyright owners to more readily dig up decades-old content on social media.
3. Obtain Proper Licensing When Possible
While courts have offered limited guidance on whether using these technologies to find online copyright infringement invokes the Discovery Rule, securing proper licensing is still the best practice. Crediting the artist does not replace a proper licensing agreement. Even when an artist gives oral consent or benefits from a brand’s use of their music, the artist does not always solely control the copyrights at issue; therefore, having an explicit license is very important to minimize liability. Without proper licensing, the record label or publisher may still enforce copyright claims, regardless of the artist’s approval. A formal license ensures clear terms of use and protects all parties involved.
Music use on social media exists in a constantly evolving legal landscape, shaped by emerging regulations, technology shifts and enforcement practices. By taking a proactive approach and understanding the legal landscape, brands can capitalize on social media engagement without incurring unnecessary risk.
