It’s no secret that a well-chosen soundtrack can be a key component to a successful social media post. But, Sony Music’s recent lawsuit against OFRA Cosmetics and its collaborating influencers underscores the importance of using only authorized music in content creation. Otherwise, the use of unauthorized music could be incredibly costly for content creators and associated brands.
What Happened to OFRA Cosmetics and its Affiliated Content Creators?
Sony Music recently sued OFRA Cosmetics and its collaborating content creators for copyright infringement. According to the lawsuit, Sony alleges that OFRA has directly infringed Sony’s copyrights by including unlicensed music in OFRA’s social media posts. Direct copyright infringement occurs when the alleged infringer copies or uses a copyrighted work without the permission of the copyright owner. By including the copyrighted songs in the background of its social media posts without the proper permission of the copyright owners – in this case, Sony Music – OFRA may be found liable for copyright infringement.
Contributory and Vicarious Copyright Infringement
In addition to the direct copyright infringement claim, Sony Music is also alleging that OFRA has committed contributory copyright infringement and vicarious copyright infringement through its partnerships with influencers.
Contributory copyright infringement happens when someone knowingly convinces, causes, or materially contributes to the direct copyright infringement committed by another. Similarly, vicarious copyright infringement takes place when someone has the right and power to supervise a copyright infringing activity, and that person has a direct financial interest in the infringing activity committed by a third party.
In the case of OFRA, the influencers that OFRA was working with were allegedly creating sponsored or organic posts and videos that included songs owned by Sony Music in the background. These songs were either uploaded from the social media platform’s music library or were uploaded by the content creators themselves. When the songs were uploaded by the influencers, the social media platforms, such as Instagram and TikTok, displayed the music as “original sounds” uploaded by the content creators and did not give credit to the copyright owners.
In exchange for the content and the exposure to potential customers, OFRA was allegedly gifting its influencers free products, and even reposting the infringing content on its own social media profiles. OFRA also likely had the ability to approve the content that was being posted on its behalf and allowed for these content creators to upload copyrighted songs without giving proper credit to the copyright holders. Because OFRA allegedly should have had knowledge of the infringement, did not exert its control to stop the infringement, and had a financial interest in the infringing content, it may be found contributorily and vicariously liable for the copyright infringement of these influencers.
How Can a Content Creator Legally Use Music in a Social Media Post?
One way that OFRA and its affiliated content creators could have avoided potential liability for copyright infringement is if they had entered into a licensing agreement with Sony Music. Licensing agreements grant third parties permission to use protected intellectual property, usually in exchange for a fee that is paid to the owner of the protected work.
Generally, social media platforms have their own licensing agreements with copyright holders such as Sony Music. The licenses allow users to upload songs from the social media platforms’ libraries without being liable for copyright infringement. However, these licenses granted to platforms like TikTok and Instagram do not allow the songs to be used for commercial use. So, by using songs owned by Sony Music in posts that were created to help sell OFRA’s products, the content creators, and in turn OFRA, were improperly using Sony Music’s songs. Therefore, it is crucial for content creators, brands, and copyright owners to understand the terms of any licensing agreements they create.
The High Cost of Copyright Infringement
U.S. copyright laws permit damages of up to $150,000 for each claim of copyright infringement. For OFRA, Sony Music is alleging that there are at least 329 videos on social media that infringe on Sony Music’s copyrights – meaning that OFRA could be potentially liable for more than $49 million. The considerable financial consequences serve as ample motivation for content creators to steer clear of copyright infringement.
Conclusion
Music is a great way to elevate content on social media. But, content creators must ensure that they are including songs in their sponsored posts that are licensed for commercial use and are not being portrayed as their original creations. Similarly, brands collaborating with content creators should discourage the illegal use of music and refrain from using improperly licensed music in their own content. Finally, musical artists and labels should carefully grant licenses and monitor potential infringement of their copyrighted music. If you have questions about whether copyrights are being infringed in social media content, reach out to a member of our team for guidance.
Andres Munoz is admitted to practice law in New York and Florida.
