Is Your Brand Illegally Using Trending Audio?

It’s time to say the quiet part out loud.

Let’s start with some hard truths.

1. Most brands are illegally using trending songs and sounds on TikTok and Instagram.

2. Just because your brand account technically has access to and allows you to use a song or audio does not mean you legally have permission to.

3. Your ability to use trending audio as a brand will likely come down to the level of risk your brand’s legal team is willing to accept.

4. Big platforms, like TikTok and Instagram, often encourage brands to participate in trends, all while knowing brands legally shouldn’t use these sounds.

5. Some brands are already being sued for using trending songs or audio—so far it’s only affected audio used in ads or boosted posts.

6. And, finally, the hardest truth of them all: videos that utilize trending audio often outperform videos that don’t.

I feel like I just said the quiet part out loud there.

This newsletter will cover a few things I’d be thinking about right now as a brand in relation to short-form video and trending audio. I also feel the need to say that I am not a lawyer and nothing I am writing here is legal advice! Okay, let’s dive in.

Define Your Level of Risk

I often see questions on Twitter like “How is X brand using that song on TikTok?” and the answer is usually the same: their legal department is either very chill or doesn’t know about it. Since I don’t recommend keeping your trending audio strategy a secret (you know every time you post you’re accepting a “Music Usage Confirmation” agreement, right?), I’d say work with your manager, CEO, or legal department on establishing what level of risk the brand is willing to accept. Lay out the costs and benefits that come from using these sounds.

Kassie Epstein 🏟 @kassieepstein

I am a: ⚪️ man ⚪️ woman 🔘 social media manager looking for: ⚪️ money ⚪️ fame 🔘 whatever approvals empire state building has to be able to post the music they use

When I asked a social manager who preferred to remain anonymous about how involved legal has been in their brand accounts she said, “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.”

Another social manager mentioned that they’ll use “original audio” (think popular talking sounds like “you’re coming home with me” or “nobody’s gonna know”) but won’t use any audio that uses a sample or remix of a popular song from a famous artist. The thought there is that it’s unlikely that a random person whose audio went viral will sue you, but it is more likely that a music studio or artist will sue you.

So far, from what I’ve read, the only brands that have been sued are for using popular music or sounds specifically in ads or boosted posts. Otherwise the repercussions have been the audio being removed or cease and desists sent.

Ultimately, it comes down to what your legal team is comfortable with here.

Yes, You Can Ask for Permission to Use a Sound

I think a common misconception is that if your legal team doesn’t let you use trending audio then you are shit out of luck. That’s not exactly true. If there’s a popular “original audio” that you can very clearly trace back to the original source or person, you can just ask! A social manager who preferred to remain anonymous told me, “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.”

If there’s a sound your brand really wants to use, try reaching out directly to get permission!

Bari Rosenstein @basicallybari

video on left uses a trending audio (that we got permission to use) and video on right uses audio from commercial library I wish Tik Tok views didn't depend on trending audio so heavily, especially as brands are getting more pull back on using audio they don't have the rights to

And No, Just Because You Have “Access” To Use a Sound Does Not Mean You Can Legally Use It

If you have a business profile on both Instagram and TikTok you do not have access to the full music library (meaning you can’t use that trending Drake or Miley Cyrus song), but you do have access to almost every “original sound”. I’ve heard a lot of social managers say that because they have access to use and “credit” these sounds that they legally have permission to post them. This is not true, especially for ads or boosted posts. Unless the sound is royalty-free or owned by you as the brand, you technically don’t have permission to use it.

I have also heard of brands not converting their accounts to business profiles so that they can access the full music library—you know, to use that Drake or Miley Cyrus song. One anonymous social manager that I spoke with said, “We have also decided to not use a business account on our TikTok profile so that we can use trending sounds…” That is, in my opinion, a huge risk and should be 100 percent be discussed with your legal team. That’s a fast-tracked way to get sued by an artist or music studio.

And, as a reminder, your company does not care about you and I wouldn’t rely on being protected by them in any sort of legal scenario.

Social Savannah @social_savannah

Why do brands take the risk of using popular songs in their ads? Do they not realize this is highly illegal and very risky? I'm sure Drake is not getting a "cut" of this. I see brands do this all the time, especially on TikTok. I would never take that risk. Why would you?

Instagram and TikTok Need to Do Better for Brands

There are two big things that these platforms could do to help brands when it comes to trending audio.

First, allow creators who upload a viral audio (meaning it’s them talking or saying something in their own words) to monetize it. And, in turn, allow brands to pay directly to use the audio. Think of it like a mini marketplace within the app that allows creators to properly get paid for their audio blowing up and allows brands to legally participate in trends. I often think about this interview I did with Mikhaela Jennings who was behind the “the girls that get it, get it” trend—worth revisiting in the context of this newsletter.

Second, make the “Commercial Sounds” library better. I truly cannot listen to “Aesthetic” or “Chill Vibes” one more time. These platforms know the power of speaking audio trends, hire someone who makes royalty-free original sounds for brands to use! Work with and compensate creators to get trending audios into the library! Partner with brands to make some of these commercial sounds trend!

At the end of the day, these platforms are intentionally murky with brands about the legality of using trending audio because they know it performs better and they frankly don’t have a good solution. Here are two options that would greatly help brands and keep them invested in short-form video.

Finally, Brands Should Probably Start Making Trend-Agnostic Content

I think the lawsuits against brands for using trending songs in ads is just the tip of the iceberg, and we’re going to see brands who use trending audio in organic social posts start to be affected as well. If I were managing a brand’s TikTok or Reels strategy, I’d be starting to move in the direction of figuring out how to rely less on trends as your core strategy.

I personally get inspiration from accounts that don’t use trending audio or songs like Planet Money, Chipotle, and Spikeball. I also look to creators like @richcaroline, @bomanizer, and @lyssielooloo for how to be entertaining without using specific sounds.

@planetmoneyThe wealthiest 10% of Americans own 69% of the wealth. That sounds kinda bad. It is. It's also bad for the economy. #pmsummerschool #economics #learnontiktok #debt #recession

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I also think, from a more strategic perspective, that relying less on trends allows you as a brand to have a more distinct voice on social. Yes, right now the fastest, easiest way to grow is to play into trending content—but in the long run how can you set your brand up to have a unique and memorable online presence? I can promise you it’s not by using the same audio that thousands of other brands are using.

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