Let’s confront some uncomfortable realities head-on.
- A significant number of brands are operating in a legal gray area, if not outright illegally, by incorporating Trending Songs and sounds into their content on platforms like TikTok and Instagram.
- The mere technical accessibility of a song or audio within a brand’s account, which seemingly permits its use, does not automatically grant legal authorization for its utilization.
- A brand’s approach to leveraging trending audio will largely hinge on the risk tolerance defined by its legal team.
- Major platforms, including TikTok and Instagram, frequently encourage brands to engage with trends, often sidestepping the legal ambiguities associated with using these sounds.
- Lawsuits are already emerging against brands for unauthorized use of trending songs or audio—primarily concerning audio employed in advertisements or boosted posts.
- And perhaps the most challenging truth: content featuring trending audio often achieves superior performance metrics compared to content without it.
It feels important to state these often-unspoken truths clearly.
This article will delve into key considerations for brands navigating short-form video content and trending audio. It is crucial to preface this by stating that I am not a legal professional, and this should not be considered legal counsel. With that said, let’s explore this topic further.
Define Your Brand’s Risk Tolerance
It’s common to see questions circulating on social media platforms like Twitter, questioning how certain brands are utilizing specific songs on TikTok. The recurring answer often points to a lenient legal department or a lack of awareness regarding the issue. Given that a trending audio strategy shouldn’t operate covertly (especially considering the “Music Usage Confirmation” agreement accepted with each post), it’s advisable to collaborate with management, executive leadership, or legal counsel to establish an acceptable risk threshold for the brand. Clearly articulate the potential costs and benefits associated with utilizing these sounds.
Alt text: Twitter profile picture of Kassie Epstein, a social media manager, humorously seeking music usage approvals for the Empire State Building’s social media content.
When inquiring with a social media manager, who wished to remain anonymous, about the involvement of legal teams in brand accounts, they shared, “From 2021-2022, we operated without securing explicit permissions for any of the sounds used. It was our legal department that clarified our lack of rights to the sounds we had been utilizing.”
Another social media manager indicated a strategy of using “original audio”—referring to popular spoken-word sounds like “you’re coming home with me” or “nobody’s gonna know”—while avoiding audio that samples or remixes well-known songs from established artists. The rationale is that legal action from a viral audio creator is less probable than from a music label or prominent artist.
Current reports suggest that lawsuits have been initiated against brands specifically for using popular music in advertisements or boosted content. The repercussions for organic content have largely been limited to audio removal or cease and desist notices.
Ultimately, the comfort level of your legal team will dictate your brand’s approach to this issue.
Seeking Permission for Sound Usage is Possible
A common misconception is that a restrictive legal stance on trending audio equates to a complete dead end. This isn’t necessarily true. If an appealing “original audio” trend emerges, and its origin can be clearly traced back to an individual creator, direct outreach for permission is a viable option. An anonymous social media manager explained, “With increasing legal scrutiny around sound rights, obtaining permission from the original sound creator has become mandatory. We adhere to UGC permission protocols, commenting on the original video to request usage rights, which requires an affirmative response from the creator.”
If a particular sound aligns with your brand’s content strategy, proactively seeking permission is a worthwhile endeavor.
Alt text: Twitter profile picture of Bari Rosenstein, juxtaposing video views using trending audio with permission versus commercial library audio, highlighting the platform’s trend-dependent visibility.
“Access” Doesn’t Equal Legal Right to Use Sounds
While business profiles on Instagram and TikTok offer restricted access to full music libraries (limiting use of major artist songs), they generally provide access to a broad spectrum of “original sounds.” A prevalent misconception among social media managers is that this accessibility, coupled with “crediting” the sound, inherently grants legal permission. This is particularly untrue for advertisements or boosted posts. Unless audio is explicitly royalty-free or brand-owned, legal usage rights are technically absent.
Anecdotally, some brands circumvent business profile settings to access the comprehensive music library—specifically to utilize popular songs. An anonymous social media manager admitted, “We’ve opted against using a business account on TikTok to maintain access to trending sounds…” This strategy, however, represents a significant legal risk and necessitates thorough discussion with legal counsel. It’s a direct path to potential legal action from artists or music studios.
It’s also crucial to remember that corporate entities may not prioritize individual employee protection in legal disputes.
Alt text: Twitter profile picture of Social Savannah, questioning brands’ risky and illegal use of popular songs in ads without artist compensation, particularly on TikTok.
Platforms Need to Better Support Brands
Social media platforms could implement crucial improvements to better assist brands in navigating trending audio complexities.
Firstly, platforms should enable monetization for creators of viral original audio (spoken-word or unique sounds), allowing brands to directly license and use this audio. Imagine an in-app marketplace facilitating fair compensation for creators whose audio gains traction, while providing brands with legal pathways to participate in trends. Consider this interview with Mikhaela Jennings, the originator of “the girls that get it, get it” trend, which offers valuable insights into this dynamic.
Secondly, enhancing the “Commercial Sounds” library is essential. The over-reliance on generic tracks like “Aesthetic” or “Chill Vibes” is limiting. Platforms should invest in creating a robust library of royalty-free original sounds for brands. Collaborating with creators to integrate trending audios into this library and partnering with brands to promote commercial sounds could also be beneficial.
Currently, platforms maintain a degree of ambiguity regarding legalities, as trending audio drives engagement, and comprehensive solutions are lacking. These suggested improvements would significantly benefit brands and encourage continued investment in short-form video marketing.
Shifting Towards Trend-Agnostic Content Strategies
The lawsuits targeting brands for using trending songs in ads are likely just the beginning. It’s foreseeable that brands using trending audio in organic social content will also face increasing scrutiny. For brands managing TikTok or Reels strategies, a strategic pivot towards reducing reliance on trends as a core content pillar is advisable.
Inspiration can be drawn from accounts successfully operating without trending audio, such as Planet Money, Chipotle, and Spikeball. Creators like @richcaroline, @bomanizer, and @lyssielooloo also demonstrate effective engagement without relying on trending sounds.
Alt text: TikTok video still from Planet Money, discussing wealth distribution in America, part of their educational #pmsummerschool economics series.
Strategically, decreasing dependence on trends allows brands to cultivate a more distinctive voice online. While leveraging trends offers short-term growth, establishing a unique and memorable online presence long-term is crucial. This differentiation isn’t achieved by echoing the same audio trends as countless other brands.
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