Oops, I Did It Again: Navigating Social Media Posts for Brands

10/04/2024|4 minute read

Brands' social media feeds are getting attention lately, but not always for the right reasons. We've covered social media advertising risks in our ADventures in Law blog before. Check out Amy Ralph Mudge's post on using memes and other trending content on a brand page. While the use of memes on brands' social posts continues to come up, there's more that brands should be thinking about when creating and vetting content so they can avoid infringement claims.

Copyright Basics

First, some copyright basics. Most of the music, trending content, and other sounds used across social media on personal accounts are likely subject to copyright protection under the Copyright Act. However, an individual user syncing "Girls Just Wanna Have Fun" to a video of a bachelorette party is allowed because Instagram has obtained the necessary usage rights and permissions from the music rights holders. These licenses generally allow for personal use on that platform.

A company's social media content is not considered personal use. It contains both advertising and speech, and therefore would likely be deemed commercial speech. Commercial speech is afforded fewer protections than personal speech when it comes to alleged copyright infringement. For example, this year, the Northern District of Iowa found and an appeals court upheld that former U.S. Rep. Steven King's use of the "Success Kid" meme for fundraising purposes constituted copyright infringement because the post was of a commercial nature. When brands are conducting a risk analysis regarding potential infringement claims related to their social media content, they should consider their content commercial speech as a baseline.

Content for Businesses

To avoid infringement risks, any brand using TikTok, Instagram, YouTube, and other social platforms (we see you, Threads) should be familiar with the commercial music and sound libraries. The TikTok Commercial Music Library contains "pre-cleared music for organic content and ad creation," while Meta's Sound Collection provides music or sound effects that may be used "for commercial purposes like ads." These commercial libraries consist of royalty-free music and 99.9% of the time do not include the current Billboard Hot 100^™ hits. For accounts designated "business accounts" on Instagram, for example, only the Sound Collection Library is available to you rather than the broader music category you can access from a personal account. So, if your brand is planning to use a track from Taylor Swift's "Tortured Poets Department Anthology," you are-unless you're ready to negotiate that license-unfortunately out of luck.

Beware the Workarounds

Or are you? Didn't you see that competitor's post with "Fortnight" perfectly synced to their content? How did they get access to that song when it is decidedly not available in the commercial music library? Easy. User982739864598723 uploaded a recording of the song as an "original sound" that is available for use across the platform. TikTok and Instagram have been flooded with these third-party uploads of music and other content like audio snippets borrowed from popular TV show dialogue. We know it's tough to resist a witty "Gilmore Girls" line, and we're not alone. You can spot these often #trending original sound uploads on many brands' social feeds.

And now the trend has hit the courts. Associated Music Production (APM) has been busy lately filing lawsuits against several companies, including certain sports leagues (filed September 2024), for alleged "rampant infringement" of APM's recordings on various social media platforms, including, Facebook, Instagram, and YouTube. Kobalt Music Publishing American filed similar lawsuits in July 2024 against 14 NBA teams for unauthorized use of its recordings, and Sony Music Entertainment alleged in a now-settled suit filed in July 2021 that Gymshark infringed 297 recordings in its own social media posts as well as the posts of influencers they engaged using the theory of contributory infringement. These lawsuits are generally pleading damages under the federal code for copyright infringement, which provides for either the actual damages as well as profits from infringement pursuant to 17 U.S.C. § 504(b) or statutory damages that can be up to $150,000 (if the infringement is deemed willful) for each infringed work pursuant to 17 U.S.C. § 504(c).

Social Media Compliance Check

So what does this mean for brands? As with any new development in social media, it means that brands (specifically, their social media teams) need to be well informed about the issue and hyperaware of the content they are posting. At a very basic level, to avoid the danger zone, your team should only use music or other sounds that are available in the commercial library, unless you have a license in place. We know the mashups are tempting, but you can't always get what you want. Incorporating a user-generated sound of a song that is not otherwise available is not a viable workaround to shield a brand from the long arm of the law. In-house counsel can help manage risk by providing guidelines; sometimes it's OK to be the anti-hero. Relatedly, brands should review the terms of use for commercial music libraries, as there are some important restrictions that can land your brand in hot water if ignored. For example, the TikTok Commercial Music Library Guidelines specifically prohibit using sounds from their library on third-party platforms (e.g., exporting and posting a TikTok video inclusive of commercial music to a platform like Instagram).

At a not-so-basic level, there are some nuanced considerations when it comes to mashups or remixes of songs as well as the use of movie and television sounds or video clips. The rise of photo- and video-editing tools and continued social media engagement has reignited the age-old "What is fair use?" question regarding these derivative works. We expect to see both increased use of remixed works on social media along with copyright owners filing suit for alleged unauthorized commercial use of their intellectual property. So, proceed with caution when it comes to "original content" mashups on your brand social feeds.

It's a good time to draft social media marketing guidelines and train your teams on best practices to avoid infringement claims. You can find these popular content libraries for businesses here.

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