Navigating Music Licensing for Videos

Between the ever-growing volume of video content and the multiplying platforms to post it on, keeping tabs on digital assets is becoming an increasing concern for brands. Identifying where, how, and when visuals are being used can be a full-time job for entire teams—and that’s just to locate copyrighted images and videos post-distribution. What about the audio component—the music accompanying the videos?

While social media platforms carry licensing deals with music companies that allow content creators to use popular songs and soundtracks in their videos, they only cover user-generated content that is not generating revenue for the user. When brands—and their paid influencers—use intellectual property—whether that is an illustration, celebrity likeness, or, in this case, music—to enhance their profit, they are required to license it. This applies to all content posted on brand websites, social media, or e-commerce platforms. 

Licensing copyrighted content may be a given for agencies that are creating and distributing marketing and promotional campaigns, however user-generated content accompanied by licensed music snippets can pose a problem should brands reuse, repost, or share it. Additionally, brands may be on the hook for unauthorized use by paid influencers who are representing them.

This article highlights the increasing industry awareness around music licensing for videos and provides guidance on how to protect your brand.

Last year, music publishers sued Twitter for more than $250 million in damages, citing copyright infringement. More than 1,700 songs were named in the complaint, which asserted that Twitter capitalized on the “user engagement, and thus advertising revenue” generated from promoting posts featuring copyrighted music. Although the accusation that Twitter directly infringed on any music was dismissed, other allegations that could leave Twitter liable for damages are moving forward, including contributory infringement by failing to crack down on offenders and lack of timely response to takedown notices.

More recently, the standoff between Universal Music Group (UMG) and TikTok silenced videos across the popular social media platform, which has over 1 billion active users. TikTok and other social media companies have negotiated licensing agreements with major labels that allow the use of snippets from popular songs for non-commercial purposes. This is typically regarded as a win-win deal, attracting users to platforms and posts that feature their favorite music, and giving artists promotion and exposure to a broader audience. Yet on February 1, 2024, the soundtracks for videos featuring music by UMG artists including Taylor Swift, the Beatles, Billie Eilish, and Drake were muted and the UMG library was taken down from TikTok. The dispute revolved around three UMG complaints:

1. Appropriate compensation for artists. UMG asserted that TikTok’s compensation to artists was “a fraction of the rate that similarly situated major social platforms pay.”
2. The use of AI-generated recordings. UMG contended that TikTok was essentially “sponsoring artist replacement by AI” by not only allowing AI-generated recordings but also including tools that allow AI music creation within the TikTok platform.
3. Harmful content that could negatively impact artists. UMG said that TikTok makes little effort to deal with “hate speech, bigotry, bullying and harassment on the platform.” Videos with harmful content could potentially reflect negatively on artists and the music label if their material is used. 

While a new agreement was negotiated between UMG and TikTok, music labels are becoming more and more vigilant about non-compliant usage as well as other threats that could diminish the value of their intellectual property. 

In 2021, Sony Music Entertainment (SME) sued energy drink maker Bang Energy and then-CEO Jack Owoc for copyright infringement over 286 social media videos that used portions of SME’s copyrighted sound recordings without permission. The brand was subsequently sued by UMG and Warner Music. The music labels alleged that Bang’s growth to the third-best-selling energy drink in the US was largely attributable to its video marketing, with TikTok videos with the #bangenergy hashtag boasting more than 18 billion views. 

Last year, Sony Music Entertainment lodged a copyright infringement suit against OFRA Cosmetics for using unlicensed music in the brand’s social media posts. OFRA allegedly published 329 infringing videos to its social channels, which have about 1.7 million followers.

And most recently, SME sued Marriott for the unauthorized use of their licensed property by both the brand and its influencers. This should put brands on high alert, as the lawsuit will set a precedent for brands being responsible for the content posted by their paid spokespersons. 

As with imagery infringements, music copyright infringements can cost a brand dearly in settlements and litigation fees. 

In OFRA’s case, The infringement allegedly featured songs from Michael Jackson’s “Thriller” and George Michael’s “Careless Whisper”, along with songs by Beyoncé, Britney Spears, Usher, and Will Smith. This IP dispute could equate to damages as high as $50 million. 

The Marriott Lawsuit, which names 931 songs that include hits by Beyoncé, Michael Jackson, and Harry Styles, has the potential to hold Marriott liable for over $139 million in statutory damages under US copyright law.

And while we have not seen speculations on the potential monetary liability of Bang Energy, given they are being sued by all of the music industry’s “Big 3,” the price tag stands a chance of not just silencing the brand temporarily, but altogether.

Licensing popular music can be difficult and expensive, but there are other ways to add the dimension of sound to your campaigns. Here are four ways you can protect your brand with compliant tunes:

1. Choose public domain music and songs. Public domain works are no longer subject to copyright. Music typically enters public domain about 70 years after the artist or composer’s death. In addition, all musical works published before 1928 are public domain.  The Public Domain Information Project website houses a massive library of music that has become part of the public domain and can be used without licensing. 
2. Understand that “royalty-free” does not necessarily mean free. Royalty-free music is still licensed IP, and generally subject to some sort of payment. Instead of a percentage or pay-per-use royalty fee, it may be a one-time license fee, for example. Usage terms for royalty-free music licenses vary. It is important to review the license agreement to thoroughly understand:Who can use the music? For example, does the license provide for use under brand subdomains?
   How long can the music be used? Does the license carry an expiration date?
   Where can the music be used? Are there national or regional restrictions?
   What is the total cost? Does the license cover multiple posts/channels?
   How can you use the music? Are there any restrictions around content or industry, for example?
3. Use music from a platform’s commercial music library. Leading social platforms negotiate license agreements directly with labels so that music can be selected in-app for commercial use, enticing brands to use their platform. TikTok’s Commercial Music Library (CML) boasts over one million songs. Facebook and Instagram users can pull music from the Meta Sound Collection. It is important to note, however, that licensing from these commercial libraries is only valid inside the respective app. In other words, a video that uses music from TikTok’s CML cannot be re-posted to Instagram under the license terms.
4. Apply content tracking software that supports music detection. While the previous three recommendations can help brands get ahead of possible non-compliance issues, they do not address the tricky situation we mentioned earlier: reusing or reposting third-party content from partners, influencers, or other users that features licensed music. In many cases, this is unintentional. Interns or social media coordinators may be tasked with amplifying the brand by sharing trending videos—however while users who are not being compensated are fully entitled to use popular music in their videos, the rules change as soon as the piece is published commercially. 

AI-powered audio and video tracking can protect your brand from missteps, scanning content before it is posted as well as crawling brand, influencer, and partner properties to detect any content that may have already been distributed that is in violation. FADEL Brand Vision already supports video content tracking on platforms including TikTok, YouTube, Facebook, Instagram, and Amazon. Coming this fall, audio searches will be integrated into the Brand Vision product, allowing brands to track and validate music licensing rights across their digital assets and published properties. 

Contact FADEL for a demo of how our cloud-based brand compliance and intellectual property rights and royalty software can protect your brand from costly lawsuits.