There is currently a lot of excitement in influencer circles: more and more law firms in Germany are sending warnings to commercial Instagram users due to copyright violations when using music tracks. In some cases, existentially threatening sums are demanded, which can run into the thousands.
The background for the warnings is the use of Reels, a video function on the social media platform Instagram. Reels allows users to create and share videos up to 90 seconds long that are favored by the algorithm, thereby reaching a larger audience. Reels are an attractive marketing tool, especially for online entrepreneurs such as influencers, to advertise their products and services. To give the videos a special touch, they are often accompanied by music - and this is exactly where the problem begins. Austrian users are also threatened with hardship through warnings.
How music copyright protection affects the use of Reels on Instagram
As “works of musical art,” pieces of music enjoy copyright protection. This means that the sole right to make the work publicly accessible and exploit it lies with the author or his licensees. They can take action against third parties who use the work without appropriate authorization. They are entitled to various claims such as damages, injunctive relief and appropriate remuneration for the use of the work. But what does this actually mean for use in Reels on Instagram?
A first look should be taken at Instagram's terms of use and the music policy of the platform operator Meta. These state, among other things, that users are responsible for the content they post. This also applies to the use of music, although a distinction is made between private and commercial users.
Commercial users are not permitted to use music - including for use in Reels - without appropriate licensing. However, Instagram itself offers its users an extensive music library that “personal accounts” and “creator accounts” can access. In contrast, owners of “business accounts” are generally limited to offers such as “Facebook’s Sound Collection,” which consist of royalty-free (mostly unknown) songs. This is because the agreements between Meta and the rights holders only cover personal, non-commercial use.
When private accounts become business accounts: violation of Instagram terms of use and copyright
Even though they are referred to as private accounts, they can also be classified as business accounts based on certain parameters such as conception, number of followers or type of posts. In this case, users without a license are violating the Instagram Terms of Service and copyright law when using tracks from the Instagram music library.
The same applies to creator account users who operate their account commercially and use music from the Instagram library for their Reels. Without a license, they also violate the Instagram terms of use and copyright. Some influencers report that their business accounts can also access the Instagram music library without Instagram blocking this access.
Due to this fact, some German law firms are sending warnings to commercial users who have previously used copyrighted music for Reels without a license. The warning asks users to refrain from using the copyrighted title and to pay a large sum for the copyright infringement committed. In some cases the requested sum can be up to 25,000 euros. In addition, users must reimburse legal fees. It is also possible that commercial users in Austria can be prosecuted.
Potential for conflict between rights holders and users: The 15-second trivial limit
One question that arises is whether the commercial use of clips lasting up to 15 seconds that contain copyrighted music without a license can lead to warnings. Although German and Austrian copyright regulations provide a de minimis limit for such clips, this limit primarily concerns the question of whether such a short clip must be automatically blocked if it contains copyrighted titles.
However, the de minimis limit basically says nothing about the legality of using the music tracks. Rights holders can take action against such videos if they are aware of an infringement, as explained in the explanations to the law. Therefore, this 15-second de minimis limit harbors enormous potential for conflict between rights holders and commercial users of social media platforms, particularly with regard to the use of copyrighted music.
Insecurity among influencers: How to deal with the wave of warnings
Since the start of the latest wave of warnings, there has been great uncertainty in influencer circles in this country about how to deal with it. While some commercial users remove their Reels with underlying music, other commercial users continue their publications.
To avoid warnings, existing Reels with copyrighted music should be deleted or archived until a possible exchange function is introduced. Only royalty-free music should be used for new Reels. If a warning is received, it must be taken seriously and its contents checked.
Source:
The standard
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