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  • Paul I. Menes

Using Music In Your Social Can Create A Very Sad Song (for You or the Brand)

Music is an often indispensable component of creating compelling online content. It can set the tone or mood, drive the narrative, or emphasize a point. This is true not only for influencers posting to their own socials, but to companies seeking to create content to market and promote their goods and services.

These companies often engage influencers to do this. The content can take the form of new,

original content specifically created for the company’s campaign, or reposting content that happens to fit that campaign. (The viral Apodaca/Ocean Spray Tik Tok video is a recent example. That video, like most others, came with a soundtrack – the Stevie Nicks’ song “Dreams”).

But whether you’re an influencer or a brand, you can’t post content containing music unless you’ve obtained permission from the music rights holders. Period. (Here’s a blog I wrote last year on a related subject, using music in podcasts).

There are still a lot of misconceptions about using existing music in videos that I want to dispel, because failing to properly clear music can open one up to claims of copyright infringement. These claims can be professionally and financially devastating.

  • This is probably the biggest misconception -- your use is almost certainly not a “fair use”. Fair use is one of the most misunderstood concepts in copyright law. Unlicensed use of someone else’s music isn’t “fair use” because you think it’s “fair”, you didn’t use that much of it, you’re using it to make a point unrelated to the original message of the music, or for pretty much any other reason. (What “fair use” is, is a defense to a copyright infringement claim, that the infringer needs to prove it court. It’s not easy to do, and besides, the idea here is to avoid getting sued for copyright infringement).

  • It doesn’t matter if you’re reposting existing content. Just because it’s online doesn’t mean the creator obtained the necessary music licenses.

  • The use of popular music is not authorized by platforms, merely because they may enable users to easily search for and add popular music to video content. This is despite the fact that many popular social platforms have entered into licensing agreements with major record labels and music publishers that permit the platforms' users to “synch” (synchronize) their music to users’ videos. Why? Because these licenses generally don’t extend to commercial uses. (To be sure, one should carefully read what the applicable platform’s Terms and Conditions/Terms of Use say about this).

  • Just because a platform doesn’t prevent an account holder (commercial or personal) from uploading or reposting videos containing popular music, doesn’t mean it’s authorized or legal to do so. It’s the account holder’s responsibility to ensure any use of third party music is properly licensed.

So, what type of licenses are needed to synch music with a video? Usually, two separate licenses for each piece of music used need to be obtained and paid for. One is from the owner(s) of the underlying musical composition – the song. The other is from the owner(s) of the sound recording containing the version of the song desired to be used/synched.

While this can be expensive, especially for popular songs and recordings, it’s usually a lot less expensive than defending claims for copyright infringement.

A plaintiff in a copyright infringement lawsuit can choose between seeking two different types of damages. (By the way, taking down the unlicensed music after receipt of a cease and desist letter from the owner demanding it be done, is always a good idea, but may not prevent the lawsuit). The plaintiff can either seek:

  • actual damages, plus any profits of the infringer attributable to the infringement. However, this can be difficult to prove in many instances; or,

  • Statutory damages. These are set by federal law, and are capped at a maximum of $30,000 per work infringed, or $150,000 per work infringed, in the case of willful infringement.

The plaintiff can also seek their attorneys’ fees and costs from the infringer, if they prevail in the lawsuit.

Thankfully, there are alternatives available to license music to synch to videos. However, it’s for less-recognizable and famous music than may be desired.

  • Some platforms provide a royalty-free library of music pre-cleared for commercial use. (TikTok calls theirs the Commercial Audio Library).

  • There are also many platform-agnostic music libraries that will license music they own or have pre-cleared for synchs. Their offerings can be vast, and may include music similar enough in style or sound to be a viable substitute for more mainstream music.

So, it's fine if you want the soundtrack to your video to evoke sadness. But just synching music to it shouldn’t make you sad, or sued, or financially or professionally depleted. Just Sayin’ … TM

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