The Hidden Copyright Risks of Using Music in Your Marketing

Record labels and music publishers are taking an increasingly aggressive approach to copyright enforcement, targeting a wide range of businesses for the unauthorized use of copyrighted music in their social media marketing. Massive companies like Sony Music and Warner Music have recently filed lawsuits in the U.S. against all kinds of businesses for using copyrighted music in their social media campaigns, including restaurants, cosmetic companies, fashion retailers, hotel chains, sports leagues and even universities.

While this phenomenon is most prominent in the U.S., it is already happening in Canada: the most prominent example is the case of Sony Music Canada v Suva Beauty, the financial costs of which ultimately forced the Surrey-based makeup brand to shut down.

The Law in Canada

The use of a song in a social media video can potentially engage two separate rights under the Copyright Act: Firstly, Section 3(1) gives a copyright owner (e.g. the composer/songwriter) the exclusive right to reproduce a musical work and to communicate it to the public by telecommunication. "Telecommunication" is defined broadly under the Act as "any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system”, a definition which could be broad enough to cover social media.

Secondly, Section 18(1) gives the maker of a sound recording (e.g. the record label) an exclusive right to reproduce that recording in any material form, and “to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”.

Anyone who exercises any of these exclusive rights without ownership or consent could be found to have committed copyright infringement under Section 27(1), which defines it as anything that only the owner of the copyright has the right to do under the Act, done without the consent of the owner of the copyright.

Best Practices for Limiting Potential Liability and Navigating Music Licencing in Canada

Notably, a streaming subscription does not automatically grant the right to use music in a commercial setting. Businesses looking to use music in their social media content should consider the following:

The simplest route is to use music that is already cleared for commercial use. Most social media platforms like TikTok and Instagram each secure licences that cover personal content only that do not cover commercial use, while also maintaining a separate, smaller commercial music library which generally consists of tracks that businesses can use without obtaining a separate licence. These can be found within each platform's built-in editing tools, though availability varies by platform and region. Third-party royalty-free music services are another option, though it is important to read the licence terms carefully due to possible limitations by platform, duration, or number of views.

If a business still wants to use a specific commercially released song not present in a commercial library, obtaining a licence requires more due diligence. This typically involves obtaining a synchronization licence, which authorizes the pairing of music with visual content. It should be noted that a song generally has two layers of rights: the composition (the song/composition as written by the songwriter/composer) and the sound recording (the specific recorded version, which can be owned by a record label). Therefore, a single song involves rights held by different parties, and a business may need to contact more than one organization to prevent an infringement claim. To licence the composition, SOCAN (socan.com) and CMRRA (cmrra.ca) are the main points of contact in Canada: SOCAN handles performing and reproduction rights for songwriters, composers, and publishers, while CMRRA handles mechanical reproduction rights. To licence the sound recording itself, businesses can look at services like Connect Music Licensing (connectmusic.ca), which administers reproduction rights on behalf of both major and independent record labels.

Finally, it might be worth auditing your existing social media presence. Consider removing or editing any content that may contain unlicensed tracks, as older posts can still come up in web scraping tools that are now increasingly used by rights holders.

What about AI-Generated Music?

The intersection between AI generated music and copyright is still an evolving area without an established framework, which means that using AI generated music might still open businesses up for potential liability. This is largely because labels, artists and songwriting associations in Canada and abroad have been very active in demanding more copyright protection from AI, which often trains on copyrighted music without permission.

Conclusion

The main takeaway of this post may be this: if you are using someone else's music to promote your business, it is worth making sure that you have the right to do so. The enforcement landscape is changing rapidly, and understanding how intellectual property rights apply to your social media content is necessary for creating content safely and effectively.

Disclaimer: This post was prepared by law students at WIPILC. The information provided is for informational purposes alone, shall not be interpreted as legal advice, and is not intended to provide advice or recommendations.