Music has become an integral part of social media. Whether on TikTok, Instagram Reels, YouTube Shorts, or short-form videos on other platforms, the right soundtrack increases reach, engagement, and brand recognition. Many companies and content creators assume that using music is unproblematic as long as a track appears to be freely available in the platform's music library. However, this is generally not the case, especially when it comes to popular songs.
We are currently receiving an increasing number of inquiries from companies that are facing claims from rights holders regarding the use of music in social media posts. Often, these claims involve only snippets of songs – some well-known, others less so. The amounts claimed typically range into the mid four-digit Euro range, and can quickly reach the five- or even six-digit range when multiple songs are used.
Available Music Does Not Automatically Mean Licensed Music
A common misconception is that any music available through TikTok or Instagram may automatically be used for commercial purposes in Germany.
While most major platforms, including TikTok and Instagram, have entered into licensing agreements with rights holders in Germany, these agreements generally cover only private, non-commercial use. Separate licenses are typically required for advertising or other commercial activities. Moreover, the decisive factor is not whether a company uses an official business account. Users of private accounts and content creators may also be considered commercial actors from a legal perspective if they promote products, services, or their business.
Cease-and-desist letters and requests for authorization are on the rise
If the necessary usage rights are not in place, this often results in requests for authorization or even cease-and-desist letters.
The claims asserted typically include:
• Claims for injunctive relief,
• Claims for disclosure of information,
• Claims for damages,
• Reimbursement of legal costs.
In the cases known to us, damages are often calculated based on the so-called license analogy principle. This approach asks what licensing fee reasonable contracting parties would have agreed upon for the specific use in question. Rights holders frequently refer in this context to the practice guidelines of the German Music Publishers Association (Verband Deutscher Musikverlage), which provide indicative royalty rates.
The problem is that the amounts claimed are often based on standardized assumptions and do not adequately take into account the specific circumstances of the individual post.
Settlement Demands Are Often Significantly Excessive
As a result, companies and content creators are often faced with demands that are disproportionate to the actual extent of the use. Any claim for damages should therefore be carefully reviewed from a legal perspective.
A thorough legal assessment frequently reveals substantial grounds for challenging the claim. In many cases, the amount demanded can be significantly reduced and a commercially reasonable solution can be achieved.
However, it is even better to prevent such risks from arising in the first place. Precisely because the legal framework governing the use of music on social media is complex and the platforms often give users the impression that there are no restrictions on its use, it is advisable to seek legal counsel – ideally before incorporating music into your own content.
About the Author
Dr. Jakob Weißmann focuses primarily on intellectual property law, with particular expertise in trademark, copyright law, and unfair competition law. He is available to advise on all matters relating to music licensing rights in social media.