Using pieces of music as audio backgrounds in your own Instagram posts has become a common tool for many companies and organizations to increase reach and communicate their brand. However, there have been increasing reports recently that rights holders, through collective rights organizations, are issuing cease-and-desist warnings to business profiles in a commercial context for allegedly unlicensed use of music works.
Background: Copyright requirements and licensing
Terms of use in the B2B sector
Instagram provides a wide selection of music tracks via the “Music Sticker” feature. However, it should be noted that the underlying license agreements generally only cover non-commercial, personal use of the music. Commercial use—such as on the profiles of companies or freelancers promoting their services—usually requires a separate license. Without these rights, adding music to your own promotional posts can be considered an infringement of the rights of authors and related right holders.
Legal action by rights holders
Recently, rights management agencies have increasingly asserted claims against companies that have allegedly embedded protected music in their social media presences. The cease-and-desist letters usually include demands to submit a penalty-bearing declaration to cease and desist, pay compensation for damages, and reimburse legal costs incurred. The evidence is documented by stored or archived posts.
Specific considerations for companies and service providers
No protection from standard license
The assumption that the selection mechanisms implemented in the Instagram app provide a blanket permission for commercial use is regularly incorrect, according to current assessments. The standard license does not cover the use for advertising and marketing purposes on commercially operated accounts. As a result, there is increased legal uncertainty for companies that use musical content without acquiring separate rights.
Consequences of cease-and-desist warnings and ongoing proceedings
Recipients of such cease-and-desist warnings are often confronted with substantial demands. In individual cases, affected users defend themselves in court against these claims. According to publicly available information (see, for example, juraforum.de, as of the publication date, Source), some proceedings are still ongoing; the presumption of innocence applies to the parties involved. Until final, legally binding decisions are made, there continues to be legal uncertainty regarding the scope of existing platform licenses.
Preventive considerations for companies in the digital environment
Given the current legal situation and the increasingly stringent enforcement of rights on platforms such as Instagram, it is becoming ever more important to carefully examine usage rights for embedded media content. Companies and organizations should keep themselves continuously informed about relevant legal developments and establish legally secure structures for their social media activities.
If you are confronted with similar issues or cease-and-desist warnings, or have uncertainties in dealing with copyright-protected content, you should consider seeking qualified legal assistance to safeguard your interests in complex matters. You can find more in-depth information and support regarding the protection of music and media content at the following link to legal advice in IP law at MTR Legal Rechtsanwälte.
