What exactly happened?

In recent months, there has been a wave of cease-and-desist letters regarding the use of copyrighted music on Instagram. Companies, influencers, and commercial users who have used music in Reels and Stories without the appropriate license are receiving these letters, which demand high damages and cease-and-desist orders. The song “Pedro” by Jaxomy x Agatino Romero x Raffaella Carrà was particularly affected.

Why do I need licensing rights?

Music is protected by copyright, and using it without a license may be considered illegal public distribution. While platforms like Instagram provide music libraries, these are often intended for personal use only. Commercial accounts require explicit licenses to use music in compliance with the law. Without this permission, users risk receiving cease-and-desist letters, incurring high costs, and facing legal consequences.

What types of licenses are available for personal and commercial users? Instagram distinguishes between two main categories:

1. Music Library (for personal use only):
   • The music tracks are licensed for non-commercial use only.
   • Commercial accounts are not permitted to use this music.
2. Sound Collection (Licensed music for businesses):
   • Contains music that may be used for commercial purposes.
   • Users should check whether the selected music is actually included in the Sound Collection to avoid receiving warning letters.

How does Instagram define private use, and to what extent does this differ from the prevailing legal understanding? Instagram defines private use as the exclusive use of music for personal, non-commercial purposes. This includes posts, Reels, and Stories shared without the direct or indirect intent to make a profit. In contrast, the prevailing legal understanding often takes a narrower view of private use: It refers to purely personal, family, or private circles without public distribution. As soon as content is shared with a broad public on social media platforms, this could be legally classified as public performance, which requires a license. This discrepancy between platform guidelines and legal requirements often causes confusion and can lead to cease-and-desist letters.

What's the best way to proceed?

1. Verification of the music source:
   • Make sure the music is from the Sound Collection and is approved for commercial use.
   • If you're unsure, fall back on royalty-free music or alternative music libraries.
2. Preserving evidence:
   • Take screenshots or obtain proof of usage rights.
   • Save the license terms as they appear at the time of use.
3. Seek legal advice:
   • If you receive a warning letter, contact a specialized attorney immediately.
   • Do not sign a cease-and-desist letter without reviewing it first, and do not pay hastily.

Can a purchased license be revoked? Yes, if tracks are subsequently removed from the Sound Collection. However, this could prevent a retroactive warning if the use was still licensed at the time of publication. Therefore, it is advisable to keep records of the licenses.

What are the potential legal and financial consequences of unauthorized use?

1. Cease-and-Desist Letter and Declaration of Cease and Desist:
   • Users are required to immediately cease use and sign a legally binding cease-and-desist letter.
2. Claims for Damages:
   • Often in the form of a “fictitious license fee,” which can amount to five-figure sums.
3. Reimbursement of attorneys' fees:
   • The costs depend on the amount in dispute and can be substantial.
4. Instagram Account Suspension:
   • Instagram may delete content or deactivate the entire account.
5. Legal proceedings:
   • If a cease-and-desist letter is not submitted, it could lead to costly litigation.

To avoid cease-and-desist letters and high costs, commercial users should use only music from the Sound Collection or purchase explicit licenses. In the event of a cease-and-desist letter, prompt legal advice is essential to avoid high claims.

Please contact us if you have any questions.