Selling shoes seems easy enough, right? Get some shoes, put them in a shop, get one of those things that measures people’s feet and then make some snappy content to promote your huge range of footwear on social media. Pretty much the only challenge is deciding which pop songs to include in your videos. But other than that, it’s all pretty straight forward - until the major labels come meddling.
Or, at least, that seems to be the view of US shoe shop giants DSW Shoe Warehouse. In something of a bold - or possibly foolish - move, the shoe seller has asked the US courts to confirm that it hasn’t infringed any music copyrights, even though it included commercially released tracks in videos that it posted to TikTok and Instagram without securing bespoke sync licences.
DSW’s argues that it didn’t need any sync licences, because it is a TikTok and Instagram ‘user’ and both platforms have music licences that cover their users’ videos.
And nobody - not TikTok, not Instagram, not any record company or music publisher - ever bothered to tell the shoe people that ‘user’ - in the context of the social media companies’ music licences - means a ‘non-commercial user’. How inconsiderate of everyone involved!
In fact, the shoefolk marketeers at DSW were doing nothing more than following the instructions TikTok and Instagram provided for putting music into their promo videos, the company says in a new lawsuit.
But now - despite all of that - evil music companies “seek to pull the rug out from under DSW’s business operations” by “recently” claiming that “the very conduct that they previously encouraged and supported” - ie for social media users to include music in their posts - “constitutes copyright infringement when done by DSW”.
The labels’ previous “promises” that social media users were “free to incorporate their music” into posts are “no longer any good”. And all because DSW is doing nothing more than “operating a business” as an honest to goodness shoe emporium.
The labels’ conduct sucks, says DSW. It is “misleading” and “improper” and “violates the bargain” that those self same labels “struck with social media users”. And the suggestion that the labels should now receive additional licensing fees from DSW is unreasonable, because they have already been paid for the music DSW used by TikTok and Instagram.
The lawsuit seeks declarations that DSW hasn’t infringed any copyrights owned by Universal Music, Sony Music and BMG. It doesn’t mention Warner Music, but it has already sued DSW for copyright infringement and these same arguments will presumably appear in the formal defence to that. With this lawsuit, the shoe seller is seemingly pre-empting the other majors and BMG following Warner’s lead.
Of course, as far as the labels and publishers are concerned, it was clear from the start that when they started doing licensing deals with user-generated content and social media platforms, those licences only ever applied to truly ‘user’ generated content, and not content produced and posted by brands.
After all, it seems obvious that a label or publisher would expect to make more money from a brand using music to sell their products than an individual looking to soundtrack a silly dance video. Plus music companies want to be able to veto the use of individual tracks and songs by brands, not least because their artists and songwriters may have veto rights in their record or publishing contracts.
As a result, any brand wanting to include music in social posts needs to secure a sync licence from the relevant labels and publishers. Or, on TikTok, some tracks can be licensed for brand use via the platform’s own Commercial Music Library.
In their current terms, both TikTok and Instagram owner Meta are pretty clear about the restrictions on the use of music by brands in videos posted to their platforms. TikTok says that music from its main Sounds library “should only be used for personal, non-commercial purposes”, while Meta says “use of music for commercial or non-personal purposes is prohibited unless you have obtained appropriate licences”.
In its lawsuit, DSW includes extracts from guidelines and terms published by both social platforms which don’t provide clear guidance on using music in brand content. It’s not clear if it is arguing that, in the past, unlike today, there was no clarity anywhere in the TikTok and Instagram terms on the restrictions of its music licences. In Warner’s lawsuit, the social posts specifically mentioned dated from 2022 and 2023.
That said, even if - in the past - terms published by the social platforms were ambiguous, the licences agreed between the labels and publishers, and TikTok and Instagram, were almost certainly clear on the limitations regarding brand content.
Which means neither TikTok nor Instagram were in a position to grant permission for brands to use music in their videos, meaning those brands still infringed copyright. Even if they can claim that - because of confusing information provided by the social platforms - it wasn’t wilful infringement, which would reduce how much money the brand would have to pay in statutory damages.
DSW also tries to argue that the labels too were involved in putting out ambiguous information, because press releases announcing licensing deals with social media platforms didn’t stress that brands were not covered by said deals. Though the suggestion that press releases designed to hype up new deals are somehow legally obliged to include that level of detail seems rather ambitious on the DSW’s part.
And the claim by DSW that the major labels have only “recently” started insisting brands secure deals for social posts isn’t really credible either. The majors started suing brands over unlicensed music in social media videos at least as early as 2021, with lawsuits against Gymshark and Bang. And the fact the shoe people weren’t paying attention to any of that isn’t the fault of the music industry.