A lot of the videos are dealing with takedown notices for copyright infringement because they include the song “Black Beatles (feat. Gucci Mane)” by Rae Sremmurd, embedded below. A quick scan of the Buzzfeed article linked above shows many Instagram videos have been removed from the platform for possibly using the song. Use of the song is supposed to be the whole point of the gag: you record the video and add a clip from the song to it. It’s very similar to the 2013 explosion of “Harlem Shake” videos using the Baauer song the same name. However, it seems Rae Sremmurd, and/or his record label, aren’t too keen on the song being spread across the internet meme-style.
When uploading videos to social media to join in on a viral craze or share a holiday-themed video with a smooth Michael Bublé Christmas track, it’s important to remember basic copyright laws for music (referred to more formally as “sound recordings”). If you’re doing this as a business, on behalf of a business, to make money, or as part of your brand-building to create a social media empire around yourself, it’s even more important to use caution.
Can You Share Videos with Copyrighted Music to Social Media?
The short answer is “no.” You shouldn’t be sharing copyright music to social media platforms without a license. It doesn’t matter if it’s as part of a larger video or that hundreds of other people are doing it, too. This kind of activity could be construed as infringing, as well as a corporate/commercial use from which you are receiving a benefit. As a business entity, it’s important to recognize and respect the copyright ownership of another company or person. The mindset of “wait until it’s taken down” is what plagues the current generation of creators and is not an appropriate policy when it comes to corporate responsibility. Just ask Fox News about respecting the rights of photographers on Facebook. That being said, you don’t want to be the Scrooge and say a video can’t be shared; so, YouTube upload might be your best bet… let’s examine why.
Do You Need A License For YouTube?
Yes, typically a synch license (from the music publisher) and master use license (from the record label/sound recording owner) is required; but, there may be another alternative if you want to take the risk. Be aware that it largely depends upon what sound recording is is being used and the blanket authorizations/clearances of that particular rights holder. YouTube’s Content ID system should easily identify the sound recording used in a video and start monetizing it for the rights owner, if those permissions are granted, or only block in certain countries or platforms, like mobile devices. In some cases, the video may even be blocked completely (see here for more). This is when getting a master use license ahead of time from the owner of the sound recording (typically, the record label), is beneficial to avoid any disruption in sharing a video.
If you’re trying to clear publishing ahead of time, which is recommended, all of the performing rights organizations (PROs) have a searchable database on their websites to find out if they administer the publishing for particular songwriters and/or songs.
As mentioned above, a good rule of thumb is to upload to YouTube for distribution specifically because of YouTube’s “Music Policies” search function and the Content ID system. Anyone that has a YouTube account that is authorized to upload can take advantage of the “Music Policies” tab under the YouTube Creator Studio dashboard (click on the “Create” sidebar). You can read more about it here. Basically, the Music Policies search allows anyone uploading a video to be proactive and discover what a copyright owner’s policies are when it comes to unlicensed uploads of their music. I’ve included a screenshot I grabbed of searching for the song “It’s Beginning To Look A Lot Like Christmas”, with the Michael Bublé version as an example.
None of the other social media platforms, as far as I’m aware, offer the kind of options YouTube does when it comes to proper management of copyrighted music that’s used in user-generated content. If you’re a music creator, there are services, such as AudibleMagic, that offer a ‘Content ID’-like scanning technology for content uploaded to companies such as Facebook, Vimeo, Yahoo!, Vimeo, Twitch, and Comcast. Facebook is still considered a newcomer to the video streaming market and has a long way to come in terms of rivaling YouTube for content creator incentives, such as ad revenue sharing, and content owner protections, such as content recognition.
Is Your Existing ASCAP, BMI, or SESAC License Enough?
It depends. It’s hard to answer without knowing what kind of license a particular company has obtained from a PRO and whether it covers this type of use. Anyone can easily call ASCAP, BMI, or SESAC and talk with someone or simply review the scope of the agreement currently in place to see if it covers synch usage for streaming sites. But, don’t forget about the sound recording rights, which are often owned by the record label, if a newer recording, or the artist or artist’s estate. The most expensive part is going to be using the sound recording of a major label. Your best, and cheapest option, would be to track down a cover version of the song by an unknown artist and negotiate a master use license for a couple hundred bucks. This would allow, once publishing is also cleared, uploading to more websites that just YouTube (which is typically what marketing teams want to do given Facebook’s algorithms not favoring YouTube links, but instead their own Facebook video uploads).
Takeaways (But, What About Fair Use?!)
Always consult with an attorney since this post isn’t sufficient legal advice for your particular situation. This should help from an educational standpoint and can be useful in knowing where to go in order to develop an actual legal opinion. However, each use is different, and should be carefully considered by a bright legal mind.
One wonderful defense to any use of a copyrighted work is fair use. There may very well be an argument for fair use in your particular scenario; however, it’s a costly legal battle involved to actually obtain an opinion from a judge that your particular use would qualify as “fair.” And, more importantly, it’s going to be an up-hill battle if you’re doing the viral video activity from a corporate or business approach. Basically, don’t count on a fair use defense unless you are prepared to defend it.
Best of luck going viral!