by: Rosanne Yang

Sony Music and other record labels filed a sweeping lawsuit against Marriott recently, alleging that Marriott extensively used unlicensed music in its social media posts, going back years.  At issue are not just Marriott’s own posts, but also those of Marriott’s influencers.  The record labels are seeking Marriott’s profits received as a result of the allegedly infringing activities, or, up to $150,000 per work infringed (and there are hundreds of works at issue it appears) plus its attorneys’ fees.  While we have only heard the labels’ point of view thus far, the case highlights some fundamental issues that every marketer needs to keep in mind for advertising on social media.

1.         Music May Make Everything Better, But It’s Not Free

It’s no secret that posts with music outperform those without, and it’s no secret that the more popular or recent the song, the more people gravitate to it.  But if it brings that much value, it underscores the need to pay for it. 

Some social media platforms have struck deals with certain music labels to make particular libraries of music available for their users.  However, always be careful to check that the song you want is listed as available and check the terms on which it is available.  Music may come and go, and licensing terms may allow personal use but not commercial use.

2.         Content Is Not Free Just Because You Found It on the Internet

It is with somewhat alarming frequency that we hear from marketers that they believe music, photos, and other content are “public domain” or “freely available” just because they found them on the Internet.  If the work is not from 1928 or before, you should assume the work is protected and requires licensing (and therefore sometimes payment) in order to use it at all, and especially for commercial purposes. Even if an underlying composition was written before 1928, a modern performance of it is not free for the taking – the recording of that modern performance will be protected by copyright. 

3.         Tread Carefully When Trying to Be Culturally Relevant

Brands often want to show that they are in the thick of the action by participating in big online and offline trends.  That can range from wanting to participate in popular memes to riding the wave of events like the Olympics.  But beware. Trademark owners, photographers, celebrities, even competitors, and even just the average guy who happens to be in a pre-existing image all have rights that swirl around these memes and events.  For events where some brands pay hefty fees to become “official sponsors,” attempts by other brands to ride the wave without paying those fees is particularly risky.  There are many ways to participate in cultural trends legally – it just requires a little care.

4.         Influencers Are Not an Exception

While most copyright owners will forebear taking action against an individual if they post their kid hysterically singing the latest hit, it is important to understand both that there is no fundamental right to make that post in a personal capacity, and that when influencers are involved, there is nothing done “in a personal capacity” – it is all commercial use.  Moreover, brands are generally responsible for what their influencers post.  Be sure to have proper controls and discipline when it comes to influencer programs.

5.         “Funny” Is Not a Defense

It is often mistakenly believed that if it’s funny, it’s parody, and that parody is a defense to infringement.  That is not necessarily true, and even a winning defense on these grounds often costs hundreds of thousands of dollars.  In truth, this analysis is very nuanced and should not be undertaken lightly or in the absence of legal guidance.  There are plenty of ways to accomplish the goal as long as you are careful.

Social media posts are supposed to be eye-catching, ear-catching, fun, and engaging, and it can be hard to accomplish all that without leveraging third-party content and recent events.  But mistakes can be costly.  Successfully navigating these waters is possible as long as these lessons are kept at the forefront.

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.