TikTok has become a cultural phenomenon, and for brands, it’s an undeniable marketing powerhouse. The allure of Trending Songs On Tiktok is strong, promising increased visibility and engagement. However, beneath the surface of catchy tunes and viral dances lies a complex web of legal issues that brands often overlook. Understanding the legal implications of using trending songs is crucial for any brand aiming to succeed on TikTok without risking hefty fines or legal battles.
The Hard Truths About Trending TikTok Songs for Brands
Let’s address the elephant in the room: many brands are operating in a legal gray area when using trending songs on TikTok and Instagram. Here are some crucial realities every brand needs to acknowledge:
- Widespread Unlicensed Use: Despite the common practice, most brands are technically infringing on copyright laws by using trending songs without proper licenses.
- Access Doesn’t Equal Legal Permission: Just because your brand’s TikTok or Instagram business account allows you to access and use a song from their library doesn’t automatically grant you legal permission to use it commercially.
- Risk Tolerance is Key: Your brand’s decision to use trending audio often boils down to a risk assessment determined by your legal team. It’s a calculated gamble, weighing potential benefits against legal repercussions.
- Platforms Encourage Risky Behavior: TikTok and Instagram, while providing music libraries, often implicitly encourage trend participation without fully clarifying the legal boundaries for commercial use, creating a confusing landscape for brands.
- Lawsuits Are Already Happening: The repercussions are becoming tangible. Brands are facing lawsuits for unauthorized use of trending songs, especially in paid advertising and boosted posts. This is a clear warning sign.
- Trending Audio Boosts Performance: Perhaps the most compelling, yet legally fraught, truth: videos featuring trending audio often achieve significantly higher engagement and reach than those without. This performance incentive can tempt brands to ignore legal risks.
This situation presents a significant dilemma for brands: leverage the power of trending TikTok sounds and risk legal challenges, or play it safe and potentially miss out on viral opportunities. Navigating this requires a strategic approach that balances marketing goals with legal compliance.
Defining Your Risk Tolerance
Before diving into TikTok’s trending sounds, the first step is a frank conversation with your legal department, CEO, and marketing team. Establishing your brand’s risk tolerance is paramount. This involves outlining the potential benefits – increased reach, brand awareness, engagement – against the potential costs – lawsuits, fines, reputational damage.
Consider questions like:
- What is our brand’s appetite for legal risk?
- What are the potential financial and reputational consequences of copyright infringement?
- How crucial is viral reach to our TikTok marketing strategy?
- Are we prepared to defend potential copyright claims?
One social media manager anonymously shared, “From 2021-2022, all of the sounds we were using we did not get permission to use. Legal were the ones who explained to us that we do not have the rights to the sounds we have been using.” This highlights the importance of legal involvement in shaping your TikTok sound strategy.
Some brands adopt a slightly less risky approach, using “original audio” – viral sounds featuring people talking, rather than copyrighted music. The rationale is that suing a random individual for a viral sound is less likely than facing action from a major music label. However, even this approach isn’t entirely risk-free.
Currently, lawsuits primarily target brands using popular music in ads or boosted posts. However, as legal scrutiny intensifies, organic content may also come under the microscope. Ultimately, the level of risk your brand assumes is a decision that must be made in consultation with legal counsel.
[Kassie Epstein 🏟 @kassieepstein
Social media manager seeking approvals, humorously referencing music licensing complexities for brands.](https://twitter.com/kassieepstein/status/1620228557074214912)
Seeking Permission: A Viable Option
Thinking that avoiding trending audio altogether is the only solution if your legal team is cautious? Think again. Directly seeking permission from the original creator of a sound is a legitimate and often overlooked option, especially for “original audio” trends.
If a trending sound originates from a specific creator – someone speaking, a unique sound effect – you can reach out to them for permission. As another anonymous social media manager explained, “Now that brands are getting sued because of rights to sounds, we must get permission from the original creator of the sound. To do that, we follow the same guidelines as getting permission to use UGC, we have to comment on the original video, ask if we can use it, and the creator must reply yes for us to use it.”
This process mirrors seeking permission for user-generated content (UGC). By commenting on the original video and obtaining explicit consent from the creator, brands can secure a degree of legal clearance to use the sound. While this might not cover all legal bases, particularly regarding underlying music rights if the “original audio” contains copyrighted music elements, it demonstrates due diligence and can mitigate risk, especially with simpler, vocal-based sounds. For sounds clearly created by an individual, direct permission can be a practical solution.
[Bari Rosenstein @basicallybari
Highlighting the view difference between videos using licensed trending audio versus commercial library audio, questioning TikTok’s reliance on trends.](https://twitter.com/basicallybari/status/1617533961038618632)
Access vs. Legal Right: Clearing the Confusion
A common misconception is that having “access” to a sound within TikTok or Instagram’s business account libraries equates to legal permission for commercial use. This is a dangerous assumption, particularly for ads and boosted content.
While business accounts often grant access to a wide range of “original sounds,” this access does not automatically confer copyright clearance. Unless a sound is explicitly labeled as royalty-free or you own the rights to it, using it without proper licensing is technically copyright infringement. This is especially true for ads and boosted posts, which are clearly commercial in nature and attract greater legal scrutiny.
The temptation to bypass business accounts and revert to personal accounts to access the full music library – including popular copyrighted songs by major artists – is a risky workaround some brands consider. As one anonymous social media manager admitted, “We have also decided to not use a business account on our TikTok profile so that we can use trending sounds…” This strategy is highly inadvisable and significantly increases the risk of legal action from artists or music studios. It’s a short-sighted approach that prioritizes immediate access over long-term legal security. Remember, legal repercussions can far outweigh the short-term gains of using a trending song without permission.
[Social Savannah @social_savannah
Questioning brands’ risky use of popular songs in ads, emphasizing the illegality and potential consequences.](https://twitter.com/social_savannah/status/1546583252885839872)
How TikTok and Instagram Can Better Support Brands
To better serve brands navigating the complexities of trending audio, TikTok and Instagram could implement key improvements:
1. Creator Monetization for Original Audio: Platforms should establish a system allowing creators of viral “original audio” to monetize their sounds. This could involve a marketplace where brands can directly license these sounds, ensuring creators are compensated and brands can legally participate in trends. Imagine a mini licensing ecosystem within the apps.
2. Enhanced Commercial Sound Libraries: The existing “Commercial Sounds” libraries often lack appealing, trending-style audio. Platforms should invest in significantly improving these libraries. This could involve:
- Commissioning royalty-free original sounds: Hire creators to produce high-quality, trending-style, royalty-free audio specifically for commercial use.
- Partnering with creators: Collaborate with creators to license trending “original audios” for the commercial library.
- Brand-Creator collaborations: Facilitate partnerships between brands and creators to co-create commercial sounds that have the potential to trend.
By addressing these areas, TikTok and Instagram can create a more brand-friendly environment that balances creative expression with legal compliance. Currently, the platforms’ ambiguity regarding commercial music usage benefits them by driving engagement, but leaves brands in a precarious legal position. Providing clearer pathways for legal and ethical use of trending audio is essential for long-term brand investment in short-form video.
Moving Towards Trend-Agnostic Content Strategies
The increasing legal scrutiny surrounding trending songs suggests a future where relying heavily on unlicensed audio becomes increasingly risky. Brands should proactively explore strategies that reduce their dependence on trends as the cornerstone of their TikTok and Reels content.
Drawing inspiration from accounts like Planet Money, Chipotle, and Spikeball, and creators like @richcaroline, @bomanizer, and @lyssielooloo, demonstrates that engaging content can be created without relying solely on trending audio. These examples showcase diverse approaches, from informative and educational content to humor and storytelling, all without dependence on the latest viral sound.
Building a Unique Brand Voice Beyond Trends
While trends offer a quick path to visibility, long-term brand building requires cultivating a distinct and memorable online presence. Relying solely on the same trending audio as thousands of other brands dilutes brand identity. Developing a unique brand voice, content style, and visual identity is crucial for standing out in the crowded social media landscape.
This involves:
- Developing original content formats: Experiment with unique video styles, series, or formats that are inherently engaging and brand-specific.
- Focusing on storytelling: Craft narratives that resonate with your target audience and communicate your brand values effectively.
- Utilizing brand-owned audio: Create original music or sound signatures that become synonymous with your brand.
- Engaging with your audience authentically: Build community through genuine interaction and conversation, rather than solely chasing viral trends.
By shifting towards trend-agnostic content strategies, brands can mitigate legal risks and cultivate a more sustainable and distinctive presence on TikTok and other short-form video platforms.
Conclusion
Navigating the world of trending songs on TikTok for brands is a complex balancing act. While the allure of viral reach is undeniable, the legal risks of unauthorized music use are increasingly real. Brands must prioritize legal compliance, engage in proactive risk assessment, and explore strategies for obtaining permission when possible. Furthermore, platforms like TikTok and Instagram have a responsibility to provide clearer guidelines and better resources for brands to navigate music licensing. Ultimately, the most sustainable path forward involves developing creative, trend-agnostic content strategies that allow brands to build a unique voice and connect with audiences authentically, while staying on the right side of the law.
