The use of music on social media platforms: what businesses and creators need to know about usage licences

For several years now, the use of music on social media accounts has regularly been the subject of legal disputes. For businesses, the appeal of social media lies in the ability to react to trends within a matter of hours: a quick video shot in the office, a few scenes from production, a current hit as background music – and the reel is already online.

Whilst traditional image campaigns featuring music (e.g. elaborate advertising trailers) are meticulously planned and legally vetted in advance, social media content is created much more spontaneously and at a rapid pace: today a new product teaser, tomorrow a reaction video to a viral trend – all set to recognisable, currently popular songs that can significantly boost the reel’s success.

However, it is precisely this speed that poses the risk: what may appear to be a creative, spontaneous act in everyday social media use requires, from a copyright perspective, a thorough legal review of the materials used, particularly the music. Not least for this reason, there have been repeated “waves of warning letters” in recent years regarding the unlicensed use of music in social media posts on business accounts used for commercial purposes.

This article highlights the legal pitfalls of using music on social media platforms – from the role of platform-owned music libraries, through the differences between private and commercial use, to the rights required for using music in posts, reels and campaigns.

Copyright basics

A piece of music is generally protected by copyright. A single song may involve multiple rights held by different individuals – in particular, composers, lyricists and recording companies.

Firstly, the composition and lyrics are protected. These rights belong to the authors and are, in practice, often managed by music publishers and/or collecting societies. In addition, the sound recording itself is also protected. In this case, the recording companies (music labels), as so-called producers of sound recordings, are the rights holders, as are the performing artists who contributed to the recordings.

Under Sections 15 et seq. of the German Copyright Act (UrhG), authors have comprehensive exclusive exploitation rights to their works, meaning that, as a rule, any use – including setting a reel to music – requires their consent. Authors may grant this consent by granting so-called rights of use (licences).

Performing artists (e.g., singers, musicians, producers) are entitled to their own neighbouring rights in their performances under Sections 73 et seq. of the German Copyright Act (UrhG) (so-called performance rights). Their consent is therefore also required if their performance is used for content. In practice, this is usually handled collectively through artist contracts with labels or producers, in which the transfer of rights and remuneration are set out in detail.

Finally, recording companies (usually the music labels) have their own neighbouring rights to the sound recording under Section 85 of the German Copyright Act (UrhG) and may, in turn, grant licences for it.

In order to use music lawfully, the appropriate licences must therefore be obtained in advance from all rights holders for the intended types of use, territories and time periods. Without such licences, the use generally constitutes a copyright infringement, which may result in the rights holders seeking injunctions and claiming damages.

Sound Collection & Co.: The pitfalls of music libraries – it’s worth taking a look at the music usage terms and conditions

Many social media platforms have, for their part, entered into licensing agreements with rights holders and make their music libraries available to users on that basis. Just as they do when using them for personal purposes, many marketers and creators naturally draw on these music libraries when creating their Reels in a professional context, assuming, “If the song is available there, then I’m allowed to use it.” But there is a legal pitfall lurking here. Most of these music offerings are intended solely for private users and licensed only for private use. They are not, however, intended for commercial influencers, corporate accounts or paid collaborations. A corresponding note is also included in the terms of use or music usage terms of the respective platforms. However, anyone who does not read these and accesses the standard music library for commercial use is therefore often using music for which they do not hold a suitable commercial licence.

Many platforms also maintain music libraries containing so-called “royalty-free” music, which may be used freely by commercial accounts. On Facebook, for example, this is the “Meta Sound Collection”. On the Instagram platform, this music is set to be consistently marked with “RF” (= royalty free) in the music library in the foreseeable future. At present, however, not all royalty-free songs in the music library are clearly identifiable, a fact that is also being sharply criticised in the current debate surrounding music use on social media platforms and the resulting warnings and claims for retrospective licensing fees.

And to clarify: there is no “15-second rule” for royalty-free music use either (the “15-second rule” applies in a different legal context and is therefore of no help when it comes to music use in Shorts and TikTok videos). Even short snippets of music are regularly subject to licensing requirements in a marketing and advertising context.

What is the difference between private and non-private use?

But when is an account considered “commercial”, such that using general music libraries risks subsequent claims by rights holders?

There is currently no legal definition of this. The distinction can be made by considering the counter-question: when is an account truly “non-commercial”? Only purely private accounts used without any commercial purpose are non-commercial – that is, without advertising, product recommendations, commissions or other remuneration for their social media activities (including the receipt of free products).

Consequently, the scope of commercial use must be interpreted very broadly. As soon as an economic purpose is pursued – even indirectly – one is operating in the commercial sphere. Using a Creator or Business account, for example, on Instagram, is a strong indication that the account is a commercial one. Furthermore, for an account to be classified as “commercial”, it is sufficient for a user to promote products, share discount codes, use affiliate links, enter into partnerships, or use content (even indirectly) to increase their reach or brand awareness, even if only occasionally. This risk remains even if individual recommendations are unpaid, or if there is not (yet) a company behind the account, or if the account also contains personal posts, such as ordinary holiday photos.

Legal consequences of infringements

The commercial use of non-royalty-free music can quickly become expensive and may even be punishable by law in the event of an intentional infringement (Sections 106 et seq. of the German Copyright Act (UrhG)). Rights holders can also report infringements to the platform and thus achieve the blocking or muting of individual videos, or in special cases, even the entire account. Under civil law, claims for information, injunctive relief and damages may then arise, possibly in formal court proceedings.

Rights holders generally first demand, out of court, information, a cease-and-desist declaration (usually subject to a penalty) and damages. In doing so, they must provide a comprehensive account of the grounds for their claims and explain why they are entitled to them.

The amount of potential damages can be calculated in three ways: as actual loss (e.g., loss of profit), as the surrender of the so-called infringer’s profits, or – most commonly in practice – using the so-called licence analogy. This involves calculating “what the infringer would have had to pay as reasonable remuneration had they obtained permission to use the infringed right”. In the licence analogy, therefore, it is assumed that the rights holder and the infringer had concluded a licensing agreement in advance for the use of the musical work. The amount that would have been agreed as a licence fee (plus any surcharges, e.g., for failure to name the author, distortion or use damaging to reputation) is then taken as the amount of damages to be compensated.

Licence acquisition is necessary in practice

Conclusion: As long as the specific use of a song is not clearly covered by the platform licences, a separate licence must be obtained. In doing so, it must be clarified which rights are affected. In the case of reels, videos or clips, sound recordings with multiple rights holders (composers, lyricists, record producers, etc.) are usually used, meaning that the licence must cover both copyright and sound recording rights. Although some platforms offer a music library for commercial use, it is always advisable to carefully review the music used.

What companies should do now

Companies and creators should therefore be vigilant and bear the following points in mind:

• Check accounts: Existing content featuring music should be checked accordingly.
• Mitigate risks: Where possible, adapt, re-license or delete critical content.
• Raise internal awareness: Make your employees aware of the risks associated with music usage and provide training, particularly for marketing and social media teams.
• Obtain licences: Secure the necessary licences for social media and other advertising campaigns at an early stage and set out the scope of use in a contract.