How Brands Can Safeguard Against Music-Related Lawsuits in Social Media Marketing
In today’s digital landscape, where the rhythm of social media beats loudly, brands face an unexpected battlefront: copyright infringement related to music. The growing trend of lawsuits from music rights holders has put companies on high alert, particularly in the way they use music in social media posts.
The Evolving Landscape of Music Copyright
The surge in disputes stems from the sophisticated software developed by major music labels and publishers. This technology is designed to monitor unauthorized uses of their music online, a direct response to the “whack-a-mole” frustration that rights holders experience when their songs are used unlawfully. With potential statutory damages ranging from $200 to $150,000 for each infringement, the stakes are incredibly high for brands engaging in musical misadventures.
Recent Legal Precedents
The Vital Pharmaceuticals Lawsuit
One pivotal case in this arena occurred in 2023, when UMG Recordings pursued legal action against Vital Pharmaceuticals, the parent company of Bang Energy. UMG claimed that videos posted by Bang and its influencers on TikTok utilized copyrighted tracks without authorization. The court ruled that Bang was aware of the copyright infringement, thus failing to escape liability. This landmark decision emphasized that intent doesn’t play a role in establishing direct liability for infringement.
However, the court didn’t side with UMG on its vicarious infringement claims, ruling that UMG couldn’t prove Bang’s influence over the influencers’ choice of music. This highlights the complexity of liability in influencer marketing and underscores the need for brands to be vigilant.
A Widening Litigation Trend
Following the UMG vs. Vital Pharmaceuticals case, the enforcement efforts of music rights holders have intensified. Sony Music Entertainment, for instance, initiated lawsuits against brands such as Gymshark, OFRA Cosmetics, and Marriott International for similar alleged infringements. Each of these cases draws parallels to the earlier suit, as brands supposedly knew their music usage was unauthorized—and yet continued anyway.
Just as UMG laid the groundwork, other entities like Warner Music Group have joined the fray, further amplifying the urgency for brands to tread carefully with musical selections in their marketing strategies.
Strategies for Brands to Navigate Music Licensing
So, how can brands avoid the pitfalls of copyright infringement while ensuring fair compensation for artists?
License Directly Whenever Possible
While the most straightforward solution is to license music directly from rights holders, the fast-paced nature of social media often complicates this. Licensing can be time-consuming and costly, which leads many brands to seek alternative routes.
Utilize Commercial Music Libraries (CMLs)
A practical alternative is to use music from the social media platform’s Commercial Music Libraries (CMLs). Platforms like Meta and TikTok offer distinct libraries designed for commercial use, provided that brands adhere to other licensing terms. However, challenges in navigating these library structures exist, especially given changing rights over time.
Best Practices to Minimize Legal Risks
Stay Informed: Regularly review the terms of service associated with CMLs and other licensing agreements to remain compliant.
Monitor Usage: Employ software or collaborate with external vendors to track compliance and identify potential copyright infringements across social media channels.
Educate Influencers: Ensure that influencers understand the licensing framework, helping them stay within the legal bounds of content creation.
- Adapt to Change: As licensing terms evolve, brands must swiftly alter their strategies to maintain compliance and avoid potential lawsuits.
Conclusion: The Importance of Proactive Measures
The rising tide of lawsuits from music rights holders is a clarion call for brands. Engaging with music in social media marketing offers immense benefits, but it also poses significant risks. Proactive steps, from understanding platform-specific licensing terms to leveraging compliance monitoring tools, can save brands from costly legal battles and help protect the rights of artists.
As brands navigate this dynamic landscape, the mantra remains: compliance is king. Taking these precautions not only safeguards against potential litigation but also respects and supports the artists whose work enriches our digital experiences.
About the Authors:
Sarah Moses is an entertainment litigation partner specializing in complex litigation and disputes related to copyright and other creative rights.
Monica Kulkarni, an associate at Manatt, Phelps & Phillips, LLP, provides comprehensive legal counsel in advertising, marketing, and media across diverse industries.
- Jacob Geskin, a law clerk at Manatt, focuses on the intersections of music, intellectual property, and media law.
