A common part of your life as a content creator is likely the creation of online videos on social media platforms, such as YouTube or Instagram. The videos may be for a multitude of reasons: to showcase a product, to show off your style, or just to demonstrate your creativity. So when it comes time to edit your video and publish it to a social media platform, you may want to add snippets of Rihanna singing “Pon De Replay” in in the background of the video to make it pop. For marketing purposes, this is a great idea, as it will likely increase the engagement for your videos. But when it comes to the legality of using other another artist’s music in the background of your videos, you must make sure that you are adhering to copyright law. If not, you could be liable for copyright infringement. So before publishing that next style lookbook video with “Bad Guy” by Billie Eilish playing in the background, here are some tips on using music in your social media videos
- If possible, get permission from the copyright holder of the song.
The easiest way to ensure that you are adhering to copyright law when using another artist’s music in your video is to ask for permission. Specifically, you should seek a license to play the song. There are two licenses that you should seek in order to legally play another artist’s song: a synchronization license and a master license. A synchronization license gives you permission to synchronize the song with a visual media output, such as a video.[1]The publisher of the song often administers the synchronization license.[2]The identity of the publisher can vary tremendously, as it can be a large corporation that publishes music or an individual artist that publishes his or her own work.[3]
A master license gives you permission to play the specific recording of the song in question.[4]Again, the holder of the master can vary from a record label to an individual artist.[5]If you would like to search for the publisher and master holder of a particular song, you can use the websites below.
If you are starting out as a content creator, obtaining a license from an artist may be difficult to accomplish because licenses can be expensive.[6]If you don’t have the budget to pay for a license, try to use music from lesser-known, local artists! You can promote independent music while obtaining a license in a more cost-effective way.[7]The local artists also have an incentive to work with you and allow you to succeed because your videos will be a platform for their music to reach larger audiences.[8]
But regardless of what music you decide to use, always remember to give credit to the artist! Although giving credit alone is not sufficient to avoid copyright issues, it is always good practice when using another artist’s music.
- The doctrine of fair use is not a very wide shield.
You may have heard that if you use only 30 seconds of a song in a video, it is legal because it is covered under the doctrine of fair use.[9]However, this is not always true! The doctrine of fair use states that the reproduction of a work “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”[10]To determine whether the use of a work is a fair use, courts analyze four factors: “(1) the purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”[11]Consequently, courts determine whether the use of music is fair use on a case-by-case basis using the factors above.[12]There is no clear-cut 30 second rule.
When using copyrighted music in a social media video, it often may not satisfy the four factors listed above. Specifically, if you plan to be a content creator as a full-time job, you will likely be using social media videos to make money. Often, this occurs through videos that advertise a product and are sponsored by a brand.[13]When doing a sponsored video, a content creator almost always makes a profit from the video, meaning that the use of the music in the background of the video is commercial in character, rather than educational. If, however, you choose to create social media videos as a hobby, you may have a better argument that the use of the music is for education or social commentary, both of which are valid fair use purposes.[14]But as described above, the fair use analysis is determined on a case-by-case basis, so it is nearly impossible to determine whether you will succeed in a potential copyright infringement claim when arguing fair use. And as the lines between commercial and creative are becoming increasingly blurred on social media platforms like Instagram and YouTube, it is safer to avoid relying on the doctrine of fair use to use copyrighted music.
- Use risk-free music, like music in the public domain or your own music.
The best way to avoid any copyright issues when using music in the background of social media videos is to use risk-free music. The first example of risk-free music is music that exists in the public domain. The public domain is a collection of works that are freely available for reproduction because the copyrights on them have expired.[15]
However, a few words of caution when using music in the public domain. First, remember that the use of music in the background of a video affects two different types of reproduction: the synchronization of a song with a video and the replaying of the master recording. In order to avoid any copyright issues, the synchronization and the replaying of the master recording must both be in the public domain. For example, Beethoven’s Fifth Symphony is a song that is in the public domain, so it would satisfy the synchronization aspect of the reproduction.[16]However, if you use a recording of Beethoven’s Fifth Symphony from an orchestra that performed the song last year, the recording of that song is likely still protected by copyright.[17]Second, be aware that the rate at which copyrights expire varies from country to country, so make sure to do your research when using music that was copyrighted in another country.[18]
Another way that you can avoid copyright issues is to use your own music! And with technology now, making music is not just for the musically inclined. There are many websites, apps, and downloads that can help you create your own music for free. Below are some examples:
But remember, if you choose to make your own music, make sure to register your copyright for your music as soon as possible!
[1]Mik, How to Legally Use Copyrighted Music in Your Marketing Video, Miks Music (Apr. 1, 2014), https://www.miksmusic.com/how-to-legally-use-copyrighted-background-music-in-video/;What Is a Sychronization License?, Easy Song Licensing,https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-synchronization-license.aspx (last visited Nov. 3, 2019); The Legalities of Using Music in Your Online Videos, Sproutvideo, https://sproutvideo.com/blog/the-legalities-of-using-music-in-your-online-videos.html#close (last visited Nov. 3, 2019).
[2]See supra note 1.
[3]See supra note 1.
[4]See supra note 1.
[5]See supra note 1.
[6]Kelly F. O’Donnell, Copyright Licensing: Ignorance is Expensive, Pullman & Comley (Apr. 19, 2016), https://www.pullcom.com/newsroom-publications-Copyright-Licensing-Ignorance-is-Expensive.
[7]The Legalities of Using Music in Your Online Videos, supra note 1.
[8]Id.
[9]Scott Shpak, Copyright Laws for 30 Seconds of Music, Chron (Mar. 5, 2019), https://smallbusiness.chron.com/copyright-laws-30-seconds-music-61149.html.
[10]17 U.S.C. § 107 (2018).
[11]Id.
[12]Shpak, supra note 9.
[13]See Johanne Eliasson, Succeeding with Sponsored Video on Social Media, Native Advert. Inst., https://nativeadvertisinginstitute.com/blog/sponsored-video-social-media/ (last visited Nov. 3, 2019).
[14]See 17 U.S.C. § 107.
[15]Welcome to the Public Domain, Stanford Univ. Libr., https://fairuse.stanford.edu/overview/public-domain/welcome/ (last visited Nov. 3, 2019).
[16]Shpak, supra note 9.
[17]Id.
[18]See, e.g., Katarzyna Strycharz, Public Domain: Why It is Not that Simple in Europe, Communia (Jan. 26, 2016), https://medium.com/copyright-untangled/public-domain-why-it-is-not-that-simple-in-europe-1a049ce81499.
Legal Dos and Don'ts for Social Media Influencers 