IP and Copyright Issues for Social Media Influencers

If you watch videos of influencers on social media platforms, you’ll often find or hear that there is well known, popular music being played in the background. But just because these videos may be made for fun, doesn’t mean that licensed music can be used in these videos. Unauthorized usage of copyrighted music can lead to take down notices, or in some cases, more than that, including legal actions.

Understanding Fair Use

Many influencers say that using just a little bit of copyrighted music without permission is fair use. While the amount of the music being used is one consideration in fair use, it isn’t the only one, and using just a small amount of copyrighted music is still infringement.

Generally, fair use only applies for truly educational informative, or first amendment protected speech. It does not apply to a typical influencer video that is just being posted for fun.

So, for example, if you posted a small amount of a song to point out cultural references in the song or how the song’s lyrics are opposite to your political beliefs, that may be fine. But if you play that same song in the background of a video of you dancing, that’s not fair use.

The same thing goes for other forms of intellectual property. Someone comparing sandwiches from Subway and Jersey Mike’s can post a video showing those products’ logos and symbols, as that is critical critique of the brands.

Background Music

Using music that’s “just in the background” is also not fair use.

Yes, the predominance and importance of music used in an influencer’s video is one factor that is considered in fair use law and analysis. It is certainly better to use music in the background than to feature the copyrighted music as the central focal point of the video. But that alone doesn’t make the use permissible fair use.

What to Do to Stay out of Trouble

To truly stay out of trouble, influencers should use royalty free music, or else, get permission from license holders to use the music. In many cases, one time use of music can be obtained for a modest price.

Remember even if you get permission, you should review what kind of permission you have. Permission to use music in your TikTok dancing video, doesn’t mean that you can also use that music to promote a brand or product in your next video. Commercial licensing is often different (and more expensive) than just a license to use or play a particular piece of music.

Taking the Risk

If you insist on using unlicensed, copyrighted music, keep the use as short as possible. Try to create something new from it. In our example above, when you critique the political aspects of your favorite song, you’re creating a new work, a critique of music, and the focal point of the video is your commentary, not the music itself.

Call our West Palm Beach intellectual property attorneys at Pike & Lustig to help you with your next online project.

Source:

collabhouse.com/post/how-to-use-licensed-music-as-an-influencer-a-comprehensive-guide-to-enhance-your-content