Drag, drop, infringe? — the risks associated with using music on social networks – FBC News

In today’s world dominated by social media, music has become an important part of digital content, with popular songs often serving as the backdrop to captivating videos.

However, as music on platforms like TikTok, Instagram, and Facebook has increased, so have complaints of copyright infringement.

This article explores recent litigation highlighting the risks of using unlicensed music in social media content and offers key takeaways to avoid costly infringement litigation.

Recent prosecutions

Recent litigation in the music industry highlights the consequences of unauthorized use of music on social media.

In May 2024, Sony Music Entertainment sued Marriott International, accusing it of willful copyright infringement.

Sony Music Ent. v. Marriott Int’l, Inc., No. 1:24-cv-00598-RGA (Del.).

The complaint follows a familiar pattern in cases involving music used in online promotional content: Sony alleges that Marriott’s social media pages contain hundreds of videos.

Sony is seeking to not only hold Marriott accountable for its own posts, but also for posts made by influencers and Marriott franchise hotels.

Sony claims it is entitled to more than $139,000,000 in statutory damages, as well as an injunction.

Although the outcome of this case is yet to be known, similar disputes have resulted in out-of-court settlements.

Sony’s lawsuit is far from unique and highlights a growing trend of music companies pursuing legal recourse over unauthorized use of music on social media.

See Sony Music Ent. v. Gymshark Ltd., No. 2:21-cv-05731-CBM-AGR (CD Cal. 2021) (alleging unauthorized use of 297 works in online advertisements posted by Gymshark and influencers); Associated production. Music LLC v. Major League Soccer, LLC, No. 2:23-cv-01173-HDV-PVC (CD Cal. 2023) (alleging unauthorized use of 253 works in online marketing videos); Sony Music Ent. v. OFRA Cosmetics, LLC, No. 0:23-cv-62073-WPD (SD Fla. 2023) (alleging unauthorized use in over 300 social media videos).

While many recent cases involve hundreds of unlawful uses, a single unauthorized use, even if it only appears in the background of a video, can expose a content creator to potential liability.

For example, in 2023, the rights holder of “Space Jam” filed a copyright claim regarding a Minor League Baseball team’s use of the song in a Facebook video. Watson Music Grp., LLC v. Timber Rattlers Give Back, Inc, No. 1:23-cv-01133-WCG (ED Wis.).

The video featured mascots on a basketball court, with the song playing in the background, highlighting the risk associated with ambient uses that are arguably de minimis.

Music Copyright Basics

Two separate copyrights apply to musical works: compositional copyright and sound recording copyright.

Copyright ownership of the composition is often shared among various artists and music publishers, while copyright of the sound recording is usually held by record labels.

It is essential to obtain licenses from the owners of the composition and sound recording to use the music in online promotional content.

Generally, content creators using music for commercial purposes must obtain a “synchronization license” also known as “synchronization license” which allows licensees to combine music with visual content.

Without appropriate licenses, businesses may be at risk of direct, contributory, and indirect copyright infringement claims, including for content posted by influencers.

Penalties for copyright infringement can be severe. Statutory damages range from $750 to $150,000 per infringing work, with higher amounts awarded for willful infringement. Alternatively, plaintiffs can seek actual damages and profits from the infringer.

Plaintiffs can also seek injunctive relief and, in some cases, recover attorney’s fees.

The case of UMG Recordings, Inc. v. Vital Pharmaceuticals, Inc. illustrates these points well, 2022 WL 2670339 (SD Fla. July 11, 2022). In April 2021, Universal Music Group sued Bang Energy, an energy drink company, for direct, contributory and indirect copyright infringement for using its music in more than 100 videos posted by Bang and his influencers on TikTok.

On the question of direct liability, Bang argued that TikTok provides all of its members with licenses to use the songs.

However, as Universal has pointed out, these licenses often exclude commercial use, requiring separate sync licenses from owners.

Because copyright infringement is a strict liability claim, the court granted summary judgment in favor of Universal on the direct infringement claim.

The court denied summary judgment on Universal’s contributory infringement claim, finding that Universal had failed to establish that Bang intentionally induced or encouraged direct third-party infringement since it had not performed any role in the production of its third-party influencer videos.

Regarding vicarious liability, the court found that Bang did not refuse to approve influencer videos with unlicensed content, nor withhold compensation for failure to comply with Bang’s policies regarding posting of infringing content.

However, the court ultimately denied summary judgment because Universal failed to demonstrate any financial benefit to Bang until it was too late in the proceedings.

Key Arguments in Music Copyright Cases

Several key arguments are relevant when it comes to potential infringement of a composition or sound recording on social media.

The simplest argument is that the use was authorized.

To make this argument, the alleged infringer must identify a valid license and demonstrate compliance with its terms. This involves demonstrating respect for its geographic scope, the music it covers and that no changes have been made to the music.

Licenses may also provide for archiving rights, allowing the holder to keep the content online beyond the validity period.

If archival rights are not included, demonstrating that the use was removed before the end of the license term is crucial to making this argument.

Fair use is often a priority when considering arguments against copyright infringement. Courts evaluate fair use on a case-by-case basis, and while they are guided by four factors, the outcome is very unpredictable.

However, if a use is sufficiently transformative, fair use can be an effective way to end a copyright claim.

Another possible defense is the doctrine of de minimis usage, which is often evaluated by comparing the portion used to the entire original work.

For example, a brief excerpt of a song, barely recognizable, could be considered a de minimis use.

The three-year statute of limitations in copyright cases can provide a powerful, albeit complex, defense to copyright infringement.

Courts use different approaches to determine when the statute of limitations begins.

Most apply the “discovery rule” meaning the timer starts running when the copyright owner knew or reasonably should have known of the infringement.

However, some courts apply the “injury rule” considering that the limitation period runs from the occurrence of the infringement.

Last term, the Supreme Court ruled on Warner Chappell Music, Inc. v. Nealy, a case that gave the justices an opportunity to address the statute of limitations in copyright cases. 601 U.S. 366 (2024).

However, given that the issue certified for review involved the application of the discovery rule, the Court’s opinion did not provide much clarity as to the approach governing the statute of limitations.

Additionally, copyright owners can invoke the separate accrual rule for content left online, arguing that each time an infringing posting is viewed or downloaded by a third party, a new statute of limitations begins.

However, many courts have rejected this argument.

See Wolf v. Travolta, 167 F. Supp. 3d 1077 (CD Cal. 2016) (holding that the continued presence of allegedly infringing content on a website does not constitute new harm giving rise to separately cumulative harm); Michael Grecco Prods., Inc. v. Valuewalk, LLC, 345 F. Supp. 3d 482 (SDNY 2018) (suggesting that this claim would not fall within the statute of limitations if a publication was only “permanently available for public inspection”); Bell v. Oakland Cmty. Pools Project, Inc., 2020 WL 4458890 (ND Cal. 2020) (rejecting argument that subsequent views of message constitute new acts of infringement).

Although the law surrounding the statute of limitations in copyright cases remains unresolved, this argument can be a very effective way to defend against copyright infringement claims.

Best practices

(1) Check that music used in social media posts is properly licensed, rather than assuming that a platform’s license covers commercial uses.

(2) Invest in software or vendors that monitor and report potential violations on social media platforms.

(3) Provide influencers with licensed music and make sure they understand that only this music can be used in promotional content.

(4) Review license agreements carefully to ensure compliance with terms.

(5) Obtain licenses for music used in the background of promotional videos.

(6) Regularly audit content and track license expiration dates to avoid violations.

Conclusion

Social media has revolutionized the way music is shared, but it has also opened the door to complex copyright issues.

Brands and influencers who use music in promotional content must navigate a difficult legal landscape.

Without the proper licenses, even a single post can result in liability.

By obtaining and complying with necessary sync licenses and implementing safeguards to monitor online content, businesses can better protect themselves from liability and ensure compliance with music copyright laws .

Karen M. Lent and Anthony J. Dreyer are regular columnists on entertainment and sports law for Reuters Legal News and Westlaw Today.

The authors thank Laura M. Rann, associate at Skadden, Arps, Slate, Meagher & Flom LLP, for her contributions to this article.