Influencers and the use of music in videos – what is allowed and what is not allowed?

Syb Terpstra & Tessel Bossen / 13 Jan 2022

Influencers and vloggers are increasingly faced with regulation. This is not surprising, because it is now a mature industry in which a lot of money is involved. Many rules that are relevant to influencers focus on providing clarity about their clients and preventing their followers from being misled. More and more influencers, and especially the brands that engage influencers, realise the importance of complying with such regulations.

However, one topic that is rather underexposed is the use of music by influencers in videos and other content. Sometimes, this involves music that is already popular; and other times, the use of music by these influencers is what makes the music popular. Such use of music can be a win-win situation: the influencer can spice up his or her content with music and the artist gets exposure to the influencer’s followers. At the same time, not every artist wants his or her music to be used by just anyone. This leads to all kinds of questions about the use of music by influencers: what is allowed and what is not allowed?

Below, we provide some practical tips and guidelines. These are important for influencers themselves, but also for the brands that use influencer marketing. After all, if an influencer does not abide by the rules in an advertisement for your brand, this could also lead to damage to your brand and, in some cases, even to liability.

 Can I use music in my videos and vlogs?

The short answer is: yes, you can, but only if the rights owners of the music have given you or the platform on which you are posting content, such as YouTube, Instagram or TikTok, permission to do so. An important exception to this rule, is music that is not (or no longer) subject to copyright protection, for example because the music is very old, but that does not happen often.

It is important to check carefully whether all necessary permissions have been obtained. Platforms such as YouTube, Instagram and TikTok are able to monitor which music is being used and can report this to the rights owners. If permission is not granted, the rights owners can request removal of your content and sometimes even hold you liable for infringement. Therefore, always check the music policy of the platform you are using.

Why do I need permission and from whom?

Music is subject to various rights: copyright (“auteursrechten”) and related rights or neighbouring rights (“naburige rechten”). The parties owning these rights can determine who may use the music, for what purpose and under what conditions. Often, many different rights owners are involved with music.

In the Netherlands it works as follows. In principal, the copyright to music is held by the composer(s) and lyricist(s). Often, the copyright owners have transferred part of their rights to a music publisher, who takes care of the exploitation of the music.

Related rights are attached to a performance of music and to a specific recording thereof. These rights are often held by the performing artist(s) and the so-called ‘phonogram producer’, which is usually a record company and in some cases the artist himself. In practice, the owner of a certain recording is referred to as the master owner.

An example: the song Baby One More Time by Britney Spears. The music and lyrics of this song were written by the famous songwriter Max Martin (Martin Sandberg). He is therefore the copyright owner of the music and lyrics. He has transferred part of his exploitation rights to a publisher, who is therefore also copyright owner. Britney Spears herself does not own any copyright in the song, because she did not co-write the song or lyrics, she only sang it. She is therefore a performing artist and thus a related rights owner. Max Martin is also related rights owner, because he played part of the music for the recording. In addition, various session musicians play along on the recording of the song; they may also be related rights owners. The rights to the recording of the song are held by the record company (the master owner), which is therefore also the related rights owner.

As you can see: for one song, there are already a handful of rights owners. Nowadays, it even happens regularly that more than 10 writers collaborate on a song, so that on the copyright side there are more than 20 rights owners (namely: the 10 writers and their publishers and sometimes even sub-publishers). If many different musicians have also taken part in the recording (for example: a guitarist, a bass player, a drummer, a percussionist, a keyboard player, background singers, horns, etc.), and one or more record labels are involved in the exploitation, you will soon have dozens of parties whose permission you need to use the music.

See, for example, below all rights owners on the copyright side (so not even on the related rights side!) regarding the song Sorry by Justin Bieber:

Justin Bieber – Sorry

Asking permission from all these rights owners seems impossible from a practical point of view. Therefore, most platforms have thought of something and have made collective agreements with rights owners.

Don’t platforms like YouTube, Instagram and TikTok arrange music rights clearance on my behalf already?

The larger platforms, such as YouTube, Instagram and TikTok, respond to the need of users to make their videos more entertaining with music by making umbrella agreements with so-called collective rights management societies for the use of music on their platforms. Collective rights management societies are organisations such as Buma/Stemra in the Netherlandse, which can grant permission for music use on behalf of many artists.

For example, Buma/Stemra has a worldwide deal with both YouTube and TikTok on the basis of which it collect fees directly from these platforms for the use of music by artists affiliated with Buma/Stemra or its foreign counterparts. In practical terms, this means that you, as an influencer, do not need to ask permission from copyright owners if you want to use music in your content, provided that the music is part of a deal between the platform and such a collective rights management society. Often, music rights owners can still withdraw permission for specific videos, or choose to monetise; in other words: ensure that the advertising revenue generated by the video in which their music is used goes to them. For example, the music policy of YouTube, which uses the Content ID system, is explained here.

However, that is not all. Via Buma/Stemra only the copyright permission is arranged. But you also need permission from the related rights owners. Although there is also an organisation in the Netherlands that represents many related rights owners (Sena), this organisation is not authorised to make umbrella agreements with platforms such as YouTube. In practice, many record companies have mutual agreements with such platforms about the use of music to which they own related rights, but such agreements are not public.

What about ‘royalty-free’ music?

A platform such as YouTube also has an audio library that contains music whose rights have been purchased so that you can use this music for free under all your videos. However, this does not include well-known (pop) music. Facebook, Instagram, Instagram Reels and TikTok also offer a music library in the app with more and less popular music which users can choose to place under a story or video. These platforms have made agreements with all (copyright and related) rights owners of this music to make it available in this way. This means that, in principle, this music can be used on the platform concerned without any problems, although there are usually conditions attached. Common conditions are, for example, that the music may only be used on the platform concerned, or that you must mention the name of the artist concerned.

There is also a significant limitation: the free music library is much more limited for business accounts than for personal accounts. This is not surprising, considering that business accounts often generate revenue. As a rights owner, it is then more attractive to reserve permission for commercial use, so that you can charge the user a separate (higher) fee if commercial use is involved. Most influencers will therefore only be able to use the limited music library when using a business account. For other songs, separate permission must still be arranged.

How can I get permission for certain music if I am not sure if the platform has arranged it?

Because there are many different rights owners regarding a certain song, it can be quite a job to get all the necessary permissions. Fortunately, many creators transfer their rights (in part) to collective rights management societies (as mentioned above), which then manage these rights. It is therefore often possible to obtain permission through such organisations. As mentioned, in the Netherlands, with regard to copyright, this can be done through Buma/Stemra. They can often put you in touch with the right people to get all the necessary permissions. Note that Buma/Stemra usually puts you in contact with the rights owners on the copyright side (usually a publisher) and not (also) with the rights owners on the related rights side. However, the publisher concerned can often also put you in touch with the related rights owners (usually a record label).

Want to know more? Contact Syb Terpstra or Tessel Bossen

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