By Jon Mizrachi, VP/Head of Sync at Bodega Sync
The way music is used in social media content today is reminiscent of the way digital photos were treated in the early days of the internet. Since nobody really knew how to find the owner or license them, everyone just did whatever they wanted. However, while many seem to be okay with the free use of music in user-generated content, problems arise when brands take advantage of trending sounds to supercharge their social media advertising without bothering to get a license.
We all know that TikTok virality can translate into real money on DSPs and maybe even land artists a major record deal if their song takes off, but the royalties payable to rightsholders on social platforms are comically minuscule. Most artists accept this reality and trade compensation for engagement. But when a song takes off and becomes a trend, advertisers know that the same song that worked for millions of content creators is also attractive for selling athleisure.
Therein lies the issue: As soon as the usage becomes commercial, a license is needed.
Unfortunately, most branded content lives in a gray area where licensing is either misunderstood, ignored, or treated as someone else’s problem. The result is that viral songs are often hastily used without permission so that brands can exploit the trending wave before it crashes. That’s what led to recent lawsuits against DSW and Crumbl.
The Current State of Play
TikTok has tried to fix this through the creation of the TikTok Commercial Music Library (CML), which offers a flat, low royalty rate for music used in branded content. However, under their blanket license, artists are paid pennies on the dollar compared to what an agency would typically pay for a sync-licensed digital ad campaign.
Many established artists and rightsholders understand what they’re giving up and avoid opting in, but that often doesn’t stop major brands from using their viral songs in their ads anyway. Artists may find that their music has been included in the CML through their distributor without their explicit knowledge, so it’s important to review your terms carefully.
If you’re wondering if your music might be in the TikTok CML right now, you can easily search the library to check. You certainly wouldn’t know from all the licensing fees pouring in!
For brands, the decision to use music without licensing is a simple cost-benefit analysis. Licensing can be time-consuming and expensive, and social teams need to move quickly to keep up with trends. Online enforcement has historically been weak, especially for independent artists who don’t have the same firepower afforded by the majors. In many cases, brands will calculate that it’s unlikely anyone will notice or take action, and if caught, they can just settle quietly for far less than the cost of licensing a song at its peak popularity.
Nobody wants to go to court, so the mantra tends to lean towards asking for forgiveness rather than permission.
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A Good Use for AI
So how do we fight back?
With Artificial Intelligence, of course! Advances in AI-driven ACR technology have drastically lowered the overhead required to monitor music usage across social media platforms. Fast-growing companies like Pex, Third Chair, BC Guardian, and Vermillio now offer access to AI-driven enforcement tools that were once only affordable to major labels and publishers.
These services are increasingly within reach for independent artists whose music is being exploited online without consent or fair compensation.
Register Your Copyrights
If you’re going to enforce your copyrights, it’s best to actually have one. If your song has viral value, it’s critical to protect your ownership by registering your composition and master with the U.S. Copyright Office. Having a registered copyright in hand gives you added legal protection and is more likely to pressure infringing brands to pay up.
If you need help with the registration process, companies like Cosynd and LegalZoom can help. It’s not a quick process, so be sure to get this locked in as soon as your song starts gaining traction. Having a sync history is also helpful in establishing value for your song, so if you’re not working with a sync rep, this might be a good time to find one.
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Get a Lawyer
You’ll still need a human lawyer to negotiate a settlement with the brand, but having clear, timestamped evidence shifts the leverage back to the rightsholder in a way that was not possible at scale before. With clear evidence and a copyright registration, some lawyers might even be willing to take a case on contingency. Statutory damages for willful infringement can reach up to $150,000 per use, so to avoid a potential six-figure loss, most brands are willing to pay out a sizeable settlement in exchange for an NDA protecting their good name.
In the near future, it is easy to imagine an army of AI lawyer bots patrolling the internet, generating em-dash-rich demand letters to corporations on behalf of the artists who helped them sell millions in yoga pants with their viral hits. For now though, if you have a song blowing up on TikTok, you should lock down your copyright and look into enforcement.
Making brands pay up can be a full-time job!
Jon Mizrachi has worked in the music industry for two decades and brings a wealth of creative knowledge to his role leading Bodega Sync, the licensing arm of Symphonic. Since launching the brand in 2019, he and his team have secured hundreds of sync placements in popular TV shows, ad campaigns, feature films, and video games. Their diverse roster of emerging independent music creators from around the globe and emphasis on easy-clear licensing has positioned Bodega Sync as a first-stop resource for music supervisors and ad agencies. Before taking this role, Mizrachi served for over a decade as Creative Director at Carlin America, one of New York City’s largest independent music publishers. His background in music publishing provided the foundation for Bodega Sync’s one-stop licensing approach, and his extensive industry relationships continue to drive the company’s success.
