Using Music in Brand Social Media: Copyright Risks and Licensing Considerations

However, using music in a brand’s or a brand influencer’s social media posts without the appropriate commercial use licenses in place raises meaningful risks of copyright infringement.

Typically, the music contained in music libraries that social media platforms make available to individual users to add to their social media posts can only be used for a non-commercial purpose. Therefore, if music from such a non-commercial music library is used in the social media post of a brand, that use would be a violation of the terms of use and very likely be an infringement of copyrights.

In music, there are two separate copyrights: one in the sound recording (the recorded performance), and one in the musical composition (the underlying music and lyrics) that is performed on a sound recording. Using a track in a social media post implicates both works and the two copyrights. As a result, lawful commercial use of music in social media posts requires licenses that cover commercial use of the sound recording and of the musical composition. That typically requires securing and paying for multiple licenses — a license from the owner of the sound recording (usually a record company), and a license from the owner(s) of the musical composition (usually one or more music publishers). Most major platforms offer commercial music libraries or catalogs that are pre-cleared for business use on-platform. These libraries typically do not include trending or charting music.

A use is typically “commercial” when a brand posts on its social media accounts or channels to promote its reputation, goods or services. In addition, when a brand reposts user‑generated content that incorporates copyrighted works (such as music, photographs, or video clips) that the original poster has not properly licensed for commercial use, the brand’s repost can convert an originally noncommercial use into a commercial one. Because the brand itself is reproducing, displaying, or distributing the copyrighted work without authorization, the brand may be held directly liable for copyright infringement, independent of any liability of the original poster, and the repost may also violate the platform’s terms of use.

Music companies’ enforcement of their rights in this area has become increasingly common, including by way of litigation in which music companies allege copyright infringement over unlicensed use of music in social media content. Claims commonly include direct copyright infringement for a brand’s posts (including re-posts of individual user posts), and contributory and vicarious copyright infringement related to brand influencer posts. Plaintiffs frequently seek statutory damages of up to $150,000 per infringed work (i.e., $150,000 for the sound recording and $150,000 for the musical composition) for alleged willful copyright infringement.