Music is everywhere on social media. For brands, the right track can elevate a campaign, tap into a trend and make content instantly more engaging. Adding music to a TikTok or Instagram Reel takes seconds, but checking whether the music has actually been cleared is easily overlooked.
The issue is attracting increasing attention from music rights holders, with reports of copyright infringement proceedings being pursued by the likes of Warner Music, Sony Music and Universal Music against a number of high-profile brands (including various fashion retailers, hotel chains and international franchises). The scale is striking, with certain infringement claims reportedly involving over 930 alleged infringements across social media and paid influencer content.
These cases illustrate that the problem is bigger than a single post. Exposure can build quietly, one Reel, TikTok or influencer campaign at a time.
When available does not mean cleared
The ease of adding music to social content can make the legal position appear deceptively simple. A track might be readily available within a platform's music library, but that does not necessarily give a brand carte blanche to use it for any commercial purpose. Both TikTok and Meta distinguish between general music libraries (which are available for personal, non-commercial use) and commercial music libraries (which contain tracks licensed under specific terms and conditions for commercial use such as advertising, marketing and endorsements).
From a UK perspective, putting an existing song into a social media video generally engages at least:
- Copyright in the underlying musical composition and lyrics (commonly known as “publishing rights”); and
- Copyright and related rights in the sound recording of that song (commonly known as “master rights”), typically controlled by the record label.
These are separate rights and they are often controlled or administered by multiple parties. The key permissions for use in a brand advertising campaign would involve: (i) a synchronisation licence (“sync licence”) for placing the composition with moving images; and (ii) a master use licence for using the particular sound recording of that track.
Whether the necessary permissions are in place for a particular campaign will therefore depend on the specific music being used (and where the rights sit), how it is being used, and where and by whom the resulting content is published.
The fact that the track in question is available in a social media platform’s music library does, on the face of it, provide a level of comfort (subject to usage being in accordance with the relevant licence terms), However:
- Copyright infringement in the UK remains a strict liability offence, and if the track was not actually properly licensed for the brand’s downstream use in commercial advertising campaigns (or if the original permission is revoked and use continues) then this can expose infringement risks, which platforms will attempt to broadly exclude liability for and attempt to shift the usage risk to the business user as far as possible.
- Whilst business social media accounts may (through technical limitations on certain platforms) only be able to access the commercial music libraries when uploading content, this may not be the case for personal accounts that release content with a commercial purpose that then takes the usage outside of the permitted licence regime.
For marketing teams working at social-media speed, that can leave a gap. Content is produced continuously and often by a mixture of employees, agencies and influencers. The more people pressing publish, the harder it can become to maintain a clear view of what has actually been cleared.
Rights holders are listening
Detection of use is becoming more and more sophisticated. Rights holders are increasingly using audio-recognition and AI-powered technology to identify music across branded and influencer content at scale.
This makes the back catalogue important too. A campaign may be over, the agency may have changed, and the relevant marketing team may have moved on, while the content remains online.
An annual audit can provide a useful snapshot, but it does not necessarily solve the underlying problem if content continues to be published without appropriate oversight. Music clearance is increasingly an ongoing compliance issue rather than a periodic tidy-up exercise.
What should brands be doing?
For brands producing significant volumes of social content, the priority should be visibility and record keeping to understand what music is being used, where it came from and what permissions sit behind it.
That might involve:
- Thinking about the potential longevity of a campaign beyond an initial social media post. A successful advertising/marketing campaign can result in a song becoming synonymous with a particular brand or specific campaign, so securing the full rights to commercially exploit this content at the outset (i.e. across multiple platforms, media and channels and in different territories) will avoid a situation where a brand needs to secure much broader rights to exploit the content after an initial social media campaign has landed successfully and attracted widespread attention;
- Reviewing existing content, including material published through influencers, to identify potential infringement risks. This would include checking that tracks originally used from commercial libraries remain available for commercial use on that platform (in respect of posts that remain online) and using third party resources and tools (such as PRS for music, and other independent third-party companies offering specialist music clearance services) to verify licensing requirements and obtain necessary permissions for campaigns;
- Checking licences and platform terms of use carefully (which can vary between social media platforms), including whether they cover the relevant commercial use, platform, territory and period;
- Reviewing agency and influencer contracts to make clear who is responsible for securing music rights and to include appropriate warranties, approval rights and protections (such as uncapped indemnities for third party claims);
- Keeping clear records of permissions for all commercial use of music (including dated screenshots of commercial libraries with the relevant tracks that appear), so that rights can be evidenced if content is challenged later. This is particularly important where tracks may have appeared in a commercial music library but have subsequently been removed by rights holders, as evidencing this after the event is inherently challenging and immediately puts a party on the backfoot when seeking to demonstrate the song was used under a licence;
- Giving marketing teams practical guidance on when music can and cannot be used; and
- Keeping the position under review, particularly where large volumes of content are being produced across different accounts and by different creators.
Brands need not take the music out of social media. They do, however, need a rights process capable of keeping pace with the way their marketing teams actually work.
A good social campaign should make some noise. Ideally, not from the rights holders afterwards.
