ASHLEY EMANUEL—With the increasing popularity of social media and digital marketing, many companies trying to keep up with this year’s latest trends are now facing the music over their social media posts. From sports teams to restaurant chains and hotels, the lack of a copyright license for songs used in social media posts have left several major music companies asking commercial users to pay up. This recent trend began in 2021 when multiple major music labels sued Bang Energy for using hundreds of copyrighted songs on TikTok without a license. Copyright lawsuits have continued to span various products and industries with the list just this past year growing to include the AHL, Gymshark, and over a dozen NBA teams.
Chili’s is the latest business to make headlines with a copyright lawsuit. Earlier this month, Universal Music Group (UMG) filed a federal lawsuit against Brinker International Inc. (the owner of the Chili’s restaurant chain) alleging the lack of a license for various songs featured in Chili’s social media videos. The complaint filed cites 62 videos posted to Instagram or TikTok using songs from UMG artists ranging from Frank Sinatra’s classic “Fly Me To The Moon” to Ariana Grande’s modern “7 rings.” This is the second lawsuit Chili’s has faced on this issue in three months, as the Beastie Boys accused the restaurant chain this past summer of using their song “Sabotage” without permission in a social media ad.
Marriott International also faced a similar lawsuit from Sony Music Entertainment earlier this year, which recently settled. The complaint listed a history of warnings dating back to 2020 that Marriott did not have a license for some of its social media content. These warnings culminated into 931 named infringements on various social media platforms with music from artists ranging from Harry Styles to Beyonce. Most of these infringements were on Marriott’s own posts or those of its hotel affiliates at various locations throughout the world, and some others were related to deals with influencers.
Social media companies are aware of the integral role music plays on their platforms, and as a result TikTok along with others have updated their terms of service to help users avoid lawsuits. TikTok has also taken the initiative to engage directly with music companies to offer a variety of musical content to its users. For example, earlier this year, UMG and TikTok reached a licensing agreement to allow UMG’s music catalog to be available to TikTok’s global community. The caveat to this broad general use, however, is that the music must be used for personal, non-commercial purposes. If users wish to use their content for commercial purposes, they have two options — either obtain a music synchronization (“sync”) license for the songs they desire (as used historically with television advertisements) or choose from music pre-cleared for commercial use like in TikTok’s Commercial Music Library.
It is understandable why so many companies have found themselves in hot water over these lawsuits. TikTok’s popularity is based on short videos and the “trends” these create. Whether it be with a choreographed dance or a meme, various videos have gone viral and can be recognized by audiences around the world. The fast pace of changing trends creates a dilemma for many businesses on how to creatively market their products to keep up with these trends and reach consumers. While the simple solution would be obtaining a license for all music used, it is often true that by the time a license is granted for a particular trending song, the trend will have been replaced. However, it is clear from many of these lawsuits that this issue is not from a single mistaken use, but rather a pattern of dozens, sometimes hundreds of infringing uses as seen with Marriott’s astounding 931 infringements. This sheer number of infringements makes it clear that the problem may be one of a lack of copyright education or a willful choice to infringe rather than a simple misunderstanding or one-time error.
These lawsuits should serve as a warning for all companies posting on digital platforms to proceed with caution. While it is important to modernize to current needs, the content of the advertisement is key. Additionally, while many of the recent lawsuits outlined above have been against corporate giants, likely due to their high follower count and increased visibility on social media platforms, small businesses and sole proprietorships may be at risk in the future. Users should always be aware that all it takes is one viral video using copyrighted music to get the attention of a music company and be left facing a similar lawsuit. Further, the high success rate of music companies recovering for infringement in these lawsuits make it likely they will continue to file similar suits. Though it is certainly impossible to find every single video posted on a platform which infringes on copyrights, especially with features such as stories which disappear within 24 hours, there are no limits to who can view a public account, and one never knows who may view their content.
Creative solutions are needed as digital marketing continues to expand. Whether these solutions involve expanding commercial licenses to include more song options or requiring music companies to update blanket licenses for commercial use, it is likely that a long-term solution will require increased cooperation between music companies, social media platforms, and commercial users. Businesses big and small should therefore continue to monitor the outcome of these lawsuits to ensure they don’t miss a beat or become the next headline the next time they hit “post.”
