What Small Business Owners Should Know About the Use of Music on Social Media Platforms

 

Adding a popular song to social media content can increase engagement, but it can also increase the risk of copyright infringement if you do not have permission to use it. The safest route to avoid copyright infringement is to obtain written permission, generally in the form of a licensing agreement, from all copyright holders. To understand why, we will provide a brief summary of how social media platforms address copyright issues, how songs are protected under copyright law, and our recommendations for small businesses owners.

Copyright and Social Media

Copyright is a type of intellectual property right which “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” Infringement occurs when a registered copyrighted work is copied, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright holder or a qualifying copyright exception. In recent years, social media companies have become a nightmare for copyright holders as they encourage users to spend more time on the platforms and to share more content.

To protect themselves from being sued for copyright infringement, social media companies include language in their terms of use shifting all responsibility to the user. For example, by agreeing to Instagram’s Term of Use,  users guarantee that the content they post is their original work or that they have permission from the copyright holder(s) to use that content. Further, these companies have notice and takedown procedures which allow them to remove content that infringes someone else’s intellectual property rights. This means that copyright holders can pursue legal action against users who post copyrighted works without permission.

Copyright in the Music Industry

When a song is recorded, it can be protected under copyright law as both a musical work and a sound recording.  A musical work includes the song’s underlying melody and lyrics. Rights to musical works are generally owned by publishers who can range from individual songwriters to large companies.  A sound recording is a series of musical, spoken, or other sounds fixed in a recording medium e.g., CD, digital file, etc. Rights to sound recordings are generally owned by a record label or the artist if they are independent.

Thus, to avoid infringing on someone’s rights when adding music to a social media post, it is highly recommended to obtain a license from each copyright holder. Additionally, while the type of license required might differ, obtaining a license(s) is encouraged whether you are using a recorded song, its instrumental version, or even a cover version. Lastly, common practices such as giving credit to the copyright owner, including a disclaimer stating that you did not intend to infringe or profit, modifying the work, etc. are not enough to avoid copyright infringement.

Strategies for Small Business Owners

            Small business owners often use or want to use music to promote their brands on social media platforms. However, without licensing agreements, this will often result in the content being removed from the platform or legal action by the copyright holders. Importantly, the more popular a song or artist is, the more likely that these risks will materialize. Therefore, our recommendations are as follows:

1. Identify all copyright holders and negotiate licensing agreements. This is the best way to avoid copyright infringement; however, this comes at a significant cost. Between licensing fees, royalties, and legal fees, a small business could be looking at thousands of dollars to license one song.
2. Use songs available through royalty free libraries such as Facebook’s Sound Collection and Tik Tok’s Audio Collection. These songs are available through licensing agreements negotiated by social media companies. Although thousands of songs are available, the selection is limited and the song you had in mind might not be available.
3. Negotiate licensing agreements with local artists. As local artists are looking for exposure, they may license their songs to small business owners for free or at a low cost. The downside of this approach is that your content might not be as engaging as these songs are not well-known.
4. Use songs available under a Creative Commons license. Many of these songs can be found in online repositories such Beatpick, ccMixter, and Netlabels. However, some creative commons licenses do not allow use for commercial projects and may even require that derivative works be shared under the same license.
5. Use songs available in the public domain which can be found in online repositories such as MUSOPEN, Open Music Archive, and Public Domain Information Project. If a song is available in the public domain, it means that copyright protection has expired. Given the length of copyright protection in the United States, the songs available in the public domain in 2021 were created in 1925 or before.

Lastly, please remember that a copyright holder might send a cease and desist letter asking you to take down any content that includes their copyrighted work before proceeding with a lawsuit.  If you receive one of these letters, we recommend responding and promptly removing the content. Please note that if you do not respond or comply, a lawsuit for copyright infringement will often be the next step.

By Daniela Sanchez