Playing Music In Your Content: How Can You Avoid Breaching Copyright?

Using music is an essential part of any business. It can enhance your product in a particularly unique and impactful way, particularly with your marketing strategies. 

But unfortunately, it isn’t so simple. 

Having a Spotify or Apple Music account alone doesn’t allow you to use a piece of music for business purposes. Spotify, for instance, specifies that the music it provides is for “personal, non commercial use” only, though it does offer a business option. So playing a song in a function would not be permitted under the terms of service of services like Spotify. However, playing music at home would be acceptable if you chose to have a private function. 

What Is Copyright? 

When someone first creates a piece of music, an arrangement of legal obligations and rights begins to affect it from the moment of its creation. These obligations and rights determine what someone can and can’t do with the material – this all comes under copyright. 

For instance, they give the right to copy, publish, communicate and publicly perform the music, whilst simultaneously denying these rights to others. So if you want to use a piece of music, its recorded music and lyrics will be protected by copyright. To then use this music, you need permission from the copyright holder. 

How Can You Use Copyrighted Music?

Working out who can actually give this permission to use the piece of music is not a simple task. 

In any piece of music, there is usually more than one copyright owner. For example, there might be a composer of the music, a lyricist, an artist who performs the music, as well as the maker of the recording (typically a record company). The more copyright holders there are, the more complex it can become. This is especially so where record companies are involved, as their scale and complexity might complicate the process, or they might simply refuse your request to use one of their properties. 

Permission to use a song can quite easily come from an email or a conversation that permits the use of a piece of music in exchange for some monetary compensation. But as mentioned previously, this can become quite complex where more parties are involved (Sprintlaw’s Creative and Entertainment lawyers can help you navigate this difficult process!). 

Artists signed to a record company cannot simply give you permission to use their song. The record company will typically own copyright in the sound recording, so you would have to negotiate with them. This will typically be expensive and unlikely to suit your business. 

Further, the more copyright holders there are, the more expensive the process will be, as it is likely you will have to compensate each individual holder. 

There is, of course, a less financially burdensome alternative to asking the permission of every copyright holder of a piece of music. You could purchase a music license that suits your business. These can be tailored to your own circumstances. For example, if you are hosting a one off function, you can pick and choose what you want from a license. 

Purchasing such a license allows the commercial use of musical works of many different creators, whilst protecting you against an infringement of the Copyright Act 1968. Sprintlaw can help you find the music license which best suits the intellectual property you would like to use. 

Using Music On Social Media

These same rules apply to the use of music on social media. If you play someone else’s music without permission, you are breaching their copyright. Social media sites like Instagram, Facebook and Youtube will generally take down content that violates someone else’s intellectual property rights. 

However, some platforms might allow you to use music on certain terms. For example, Tiktok allows you to use music that would otherwise be copyrighted because they have a number of licence agreements with various artists. So, they have a right to offer the use of that music to their end-users (we’ve written more about this here). 

How Is Copyright Infringed?

Copyright can be infringed where:

1. You communicate an original work to the public
2. You are not the author of the work
3. You have not obtained permission from the author (for example, through a license)

So for instance, if you make a post or create an advertisement that uses a copyrighted song without prior permission, this will infringe copyright. If you record a function that contains a song, and then post this video wherein the song can be heard, this may also breach copyright laws. 

Penalties for an infringement range from damages, injunctions and costs to fines of up to $60,500 for individuals and up to $302,500 for corporations. These severe financial penalties can be coupled with up to 5 years imprisonment, an on-the-spot fine of $1,320 and the seizing of copyright infringing music and devices, including computers used to commit the infringement. 

How Can I Legally Use Music?

Buying a license or getting permission from copyright holders isn’t the only way to play music in your content. So, what options do you have?

Indigenous Music

Not all music is covered by copyright in the first place. To give an example, copyright doesn’t usually protect traditional Indigenous music or lyrics. Songs that have been passed down through many generations are not covered. 

If your organisation wants to run a post using traditional music, this is generally legal under copyright laws, although permission from the particular Indigenous group should always be sought, and its use will not always be suitable.  

‘Expired’ Copyright

Copyright lasts for the entirety of the creator’s lifetime, with an additional 70 years after this. In other words, there is music that was once covered by copyright that is now available for use. This can be a cheap and effective way to use popular and recognisable music in your content. 

Royalty Free Music

Another option is ‘royalty free music’, which is music that requires no payment. A quick Google search presents many different options for you to choose from. However, this sort of music is often in legally murky territory, and legal advice should always be sought before using it. 

For example, though the site Bensound initially appears to provide music with little to no work from the user, it actually would require you to credit the site to make it legal. Here is a list of viable royalty free music sites to have a look at. 

Create Your Own Music

Another option would be to create your own music to use in your content. However, caution is advised here. If you create it and share it on a platform like Facebook, you could grant Facebook the right to use your music for a multitude of purposes without your permission. If you have invested time and effort in creating your own music, it is crucial that you have a lawyer examine the terms of service of the relevant space you are planning to use it in. 

Some platforms like Facebook or Instagram provide options to use music they provide. However as above, there are inbuilt conditions to this use. For instance, Facebook’s terms of service specify that any provided music cannot be changed, and can be removed at their discretion. Before using this service, it’s a good idea to ask one of Sprintlaw’s lawyers to review the relevant platform’s terms. 

Need Help?

If you are running a small business in the digital age or are involved in social media marketing, it is inevitable that you will use music in your content. Understanding what music can be used and its potential consequences is not an easy task.

At Sprintlaw, we can help navigate the legal complexities of this creative space, as well as the intellectual property concerns inherent in this area. Don’t hesitate to give our team a call on 1800 730 617 or email us at team@sprintlaw.com.au for a free, no obligations chat!

Will Tinney

Will is currently completing his Juris Doctor at the University of Melbourne and is interested in helping to provide equitable and efficient access to legal resources.