[co-author: Lorraine Ma*]
Companies that rely on digital marketing and social media are now facing serious consequences over music copyright. Many have been hit with multimillion-dollar lawsuits for unwittingly using popular songs in social media posts without proper licensing. This recent wave of enforcement picked up during the COVID-19 pandemic when record labels and publishers began to sue major league sports teams for failing to scrub stadium music from game highlight posts. Since 2020, these lawsuits have continued to grow within the sports industry and beyond, affecting retail chains, lifestyle brands, and hotel groups.
Copyright Enforcement Hits Major Industries
While many of these lawsuits start and end with private takedown notices, several major brands — from hotel chains to NBA teams — have been identified in public news.
- Retail, Hospitality, and Lifestyle Brands
- Fitness and Sports-Focused Companies
- Fourteen NBA teams, including the Knicks, Cavaliers, Nuggets, and Timberwolves: Sued for using live popular music in game highlight clips without permission. Rightsholders sought tens of millions in damages.
- University of Southern California: Sued for $42 million for videos featuring more than 170 unlicensed Sony recordings across various social media accounts.
- Gymshark: Used copyrighted tracks in ads across Instagram, Facebook, and TikTok without proper licenses. Sony sought up to $44.5 million in damages.
Why is this happening? Adding music to social media content seems like a common and creative strategy to create engaging content, but the brands that do this often fail to fully understand the unique, and often complicated, requirements of music licensing.
Common Music Licensing Mistakes
- Clearing music for live usage, but not for posting: Many sports and entertainment brands play music in venues under a “Public Performance License,” which allows music to be played in public places, including restaurants, bars, retail stores, sports stadiums, casinos, and event venues. This does not automatically mean that the same song can be used for other purposes, including online or in social media posts. Sports teams run into infringement issues when they post game highlights that contain cleared stadium music. Similarly, retailers can infringe on copyright if they capture in-store content with cleared music playing in the background, and that content is later posted online by the brand or its influencers.
- Using music cleared for general use on media platforms for commercial purposes: A popular energy drink brand’s influencers used TikTok music only available for regular users in video posts. When the brand reposted those videos on its business account, Universal Music sued them for copyright infringement. Brands cannot use general music outside of the Commercial Music Library.
- Assuming that music licenses translate between media platforms: TikTok’s Commercial Music Library is cleared for brand use, but only on TikTok. Brands that repost those clips on other social media platforms can run into infringement issues. For example, a Ford dealership in Michigan used Eminem’s “Lose Yourself” in posts on TikTok, Instagram, and Facebook. The song is part of the TikTok Commercial Music Library, but not the Instagram and Facebook libraries.
- Failing to maintain clear communication about music licenses across teams: A brand’s content can be handled by dozens of teams, content creators, marketers, and influencers. Not everyone is aware of the rules around music licensing and copyright. Even if they are, sometimes a brand can have licenses to multiple songs or song libraries for varied time periods. There is risk and exposure when everyone involved does not know that certain song licenses have expired and associated social media posts need to be taken down.
How Brands Can Protect Themselves Against Copyright Infringement
Advertising professionals should always engage their legal counsel to understand licensing requirements and potential legal exposure. Advertisers can also implement music flagging and license tracking technologies, such as Whitebalance, that can comprehensively scan their social media channels and proactively take down infringing content. If music is an important part of a brand’s identity, advertisers can purchase a production music library license so that all the music they publish is pre-cleared for use.
Finally, in instances where potential infringement claims can be massive, brands should look into purchasing music and media liability policies from their insurance providers to protect themselves. In a world where authentic, organic, and user-generated content continues to dominate media, brands should employ an arsenal of human and technological tools to protect against accidental liabilities.
*Lorraine Ma is the CEO of Whitebalance, a technology platform that protects media and entertainment brands from copyright infringement.
