Hit the right note

The pandemic has forced many businesses to operate in virtual settings, from arranging for their employees to work from home, to operating entirely online (Zoom anyone?).

With some companies moving their storefront entirely online, some have followed trends by jazzing up their web presence by incorporating music. Other companies have moved their entertainment online by streaming events to the world, which were once limited to festival halls. Some have also switched their promotion channels to the web—creating movie reels on social media to advertise their latest stay-at-home lounge wear, or encouraging participation in the latest TikTok viral challenges. Many, however, are unaware of the legal requirements related to incorporating music in an online presence.

Marching to a different beat

If the music a business wants to use is protected by copyright, it’s safe to assume they need to pay to use it for commercial purposes. The marketing department needs to work closely with the legal team to ensure that planned media campaigns, whether seemingly innocuous and home-made on TikTok, or a paid and managed social media campaign, take licensing arrangements into consideration.

The marketing department should also not take for granted that the agency they engage to run the campaign have secured all the rights – nor that the influencers they pay to endorse products have a license to use the music in their tutorial videos.

With millions of pieces of content produced every year, it may seem unlikely that your use of their music would be found easily by the owner of the music. However, many of the social media platforms have algorithms that routinely scan videos to match it against identifiers in large databases.  The consequences of such copyright infringement can be dire – judges have awarded copyright owners millions in compensation, and the damage to reputation can be costly. At the very minimum, the campaign will need to be taken down, for which the business has probably invested many resources.

Drumming up support

The legal department has a real opportunity to play a business partner role with marketing. Rather than having to deal with litigation as a consequence of breaching copyright legislation, the general counsel (GC) can work with marketing to strike the right chord from the start.

Some music may be royalty-free, some music used on social media channels may already be covered by the blanket licensing agreements they have, and some use of it may be covered by (a very subjective) ‘fair usage’ argument. This minefield is best navigated by a lawyer with an in-depth knowledge of copyright law, and a thorough review of the terms and conditions of every platform the marketing video or content will be placed.

Conversely, the marketing department would be prudent to seek advice from the GC during the planning stages of a campaign. Having to find the right music once your first choice is rejected can be a painful process, potentially setting back the campaign’s launch date.

Next steps

Copyright infringement can be avoided if the right strategy is in place at the start. The GC can mitigate risk by:

1. Creating and communicating a policy regarding the use of music in online channels;
2. Reviewing the terms and conditions of the suppliers of music
3. Creating a process and standard documents to seek permission from copyright owners to use their music
4. Facilitating contract negotiations with copyright owners and collection agencies
5. Reviewing the terms and conditions of social media platforms and providing the marketing department with guidance on using music
6. Discussing with the business whether or not to set a policy of “royalty-free music only”
7. Providing adequate indemnities for any copyright infringement in agreements with media agencies and other parties (such as talent, influencers, etc.) engaged for creating online campaigns.