Nike has a marketing phrase “just do it!” But, when it comes to the social media use of background music, or any music, for commercial or business “social” media, consider the legal consequences which are possible.
Were you aware that popular social media giants like Facebook and TikTok may have legal agreements which allow their users, their content creators, to legally post content with copyrighted music? This should not be a big surprise. The music industry is quite legally sophisticated, has an incredible array of lawyers, and pursues infringements. They negotiated a deal.
Ask the companies in Las Vegas which had been borrowing Elvis Presley for theme weddings. Recently, the Estate of Elvis notified them. Basically, they said, “You ain’t nothing but a hound dog!” Of course, that lyric must be attributed to Jerry Liber and Mike Stoller.
The story of the Vegas Elvis weddings is a good memory marking monument. As a manufacturer, do not allow your media team to step on Elvis’ “blue suede shoes” or you will spend the night at “Heartbreak Hotel”.
Use of Music on Social Media According to the Law
Seriously, please let me reference an excellent source, listed just below, on this topic. Not only do not borrow someone’s tunes, but if you were accused of doing so, you are advised to not destroy the evidence. You should:
- Take down the music.
- Preserve infringing content “under state and federal rules that may require preservation of evidence.”
The citation for the above is the National Law Review, August 5, 2022, volume XII, number 217. [As a former practitioner of trial law, I recommend you read it.]
Yes, read the above cited law review article in full, unless you want to be “Crying in the Chapel” a song by Artie Glenn.
Just because many popular social media sites have agreements allowing folks who post videos to use the music they do not create (TikTok has an approved library of music), do not be tempted to think your business can do so as well.
In law school, lawyers are trained that where there is a civil wrong, a “tort”, that damages must be considered. In other words, “how much money will my client pay… or receive… if I lose or win?”
The same holds for infringement of music copyright.
Underscoring the Law on Music for Social Media Content
Now, to really set this point in your mind, I will quote again, the law review article, above, quoted.
“under the copyright act, a plaintiff may elect between (1) statutory damages, kept at a sum of $30,000 per work infringed, or $150,000 per work in the case of willful infringement and (2) actual damages…”
Are you kidding me! Any person who knew this, please, stand and take a bow. Can you imagine how much a specialist lawyer defending copyright cases charges per hour? My guess is $800-$1000.
Does your company’s general liability insurance cover such a defense? Notice that the law mentions “willful infringement”. If you have to read an insurance policy to learn whether a “willful” violation is covered, you are already in trouble.
Create content? Yes. Borrow music? No.
Be very careful if your paid professional content creator has a habit of “borrowing” content, such as blogs, images, and music. They are your agent. Your company may be sued.
And stay off of Elvis’ blue suede shoes or his estate may sue you, too.
How can you, as social media marketing manager, try to ensure that your in-house or outsourced social media agency, have not borrowed from the poisonous well of pilfered music and photos?
This is the huge question.
I will now fall back on “How much do you pay them?” By that I mean how much do you pay the low bidder on your SM contract, or the staff person who is challenged with creating much content?
Sometimes, it might be possible, or likely, that the low bidder you are using to do your social media work is likely using borrowed or illegal photos and music.
I do not know.
- Firstly: ask them. It is a good interview point to ask potential outsourced social media folks: how do you get your images… how do you gather any music you will use for me?
- Then, listen and try to verify.
Time is money for your social media management team. Whether you are working with an outside marketing agency or in-house, it is so quick to take an image or soundtrack and… who cares?
The problem is this: these social media content creators already got paid and will not be the deep pockets which will need to defend a copyright lawsuit.
Was is it Ronald Reagan who said, as regards to Soviet nuclear issues, “trust but verify”?
This writer says to you as a manager “verify always.”
Because the stakes are quite high, as mentioned above, you or someone must take account regularly of the score. Is your social media team, outsourced or in-house, “playing fair” by only using their content, or content attributed properly to its source?
I suggest you eliminate that risk from your wager.
About the Author: Robert “Al” Rusine
let’s work great together