Resolving Claims of Unlicensed Commercial Use: A Spectrum-Based Approach for Music Rights Owners

At the adversarial end of the spectrum is legal action.

While frequently not the first option exercised by rights owners, it is the reality that legal escalation is sometimes the path which must be followed to ensure that rights are protected and that artists are fairly compensated for their work.

This path is often seen as a last resort due to the significant time, expense, and potential for negative public relations associated with litigation. Nonetheless, major record labels have filed actions against brands such as Crumbl, Chili’s, and Marriott for unlicensed commercial use of their content. These lawsuits may seek statutory damages for copyright infringement, sending a strong message to the broader market about the importance of proper music licensing.

In the center of the spectrum is a more common and often more constructive approach than litigation – pursuing a negotiated license.

After the rights owner becomes aware of infringement, they may contact the infringing party, inform them of the unlicensed use, and offer to resolve the matter by negotiating a license rather than immediately initiating legal proceedings. This approach effectively turns an infringer into a licensee.

This middle-path is highly pragmatic in that it avoids the costs and uncertainty of litigation and generates revenue directly.

For the brand which used the music without permission, this option is also typically more palatable than facing a lawsuit. It allows the brand to legitimize its content, keep its marketing campaign active online, and avoids the reputational damage which may come with a lawsuit. What’s more, this process can serve as the foundation to ensure that brands follow proper licensing protocols for future campaigns.

At the opportunistic collaboration end of the spectrum, a more forward-thinking approach would see brands and music rights owners view select uses as opportunities to forge partnerships.

A 2020 TikTok video created by Nathan Apodaca provides one such example. While longboarding to work, he filmed himself drinking Ocean Spray juice and lip-syncing to Fleetwood Mac’s “Dreams.” The video, which boasts nearly 100M views, went viral.

Both the rights owners and the brand recognized an opportunity.

Mick Fleetwood and Stevie Nicks embraced the trend by creating their own response videos, resulting in a resurgence for the more than 40-year-old hit “Dreams,” which re-entered the Billboard Hot 100 chart, generating new revenue and introducing Fleetwood Mac to a new generation of fans.

Ocean Spray experienced a tremendous wave of positive exposure as well. They gifted Apodaca a new, cranberry-red truck filled with their juice. This gesture was widely celebrated, resulting in positive earned media for Ocean Spray.

While this case does not reflect a brand’s direct unlicensed usage of music, it perfectly illustrates how monitoring social media for music use can lead to partnership opportunities and forge relationships between music rights owners and brands.

How a rights owner responds to unauthorized music use is a strategic decision which exists along a spectrum, with options ranging from legal enforcement, to pragmatic negotiation, to partnership. While protecting copyrighted content remains paramount, a modern content protection strategy recognizes that enforcement is not always black and white and that opportunities exist in unexpected places.

At BCGuardian, we recognize the value of a partner and a platform which enables rights owners to respond to infringement with calculated action across a spectrum. We designed our Reverb platform to empower just this type of flexibility. Drop a note to us on LinkedIn or at [email protected] to learn more.