They are the most popular tool on Instagram: Reels and Stories. Every user can get such a short video clip in no time at all. Conveniently, your own film can also be underlaid with your current favorite hit from the charts. Stop! As of now, you may be stepping into a copyright minefield. Who needs to worry now?
The music function in Instagram has recently come under the scrutiny of lawyers. Numerous users have received unpleasant mail in the past few weeks. These are warnings for unauthorized use of music. The penalty for this is said to be in the five-digit range.
What is it about?
It’s a short message: The law firm B&B Beutler Brandt Rechtsanwälte is sending warnings to assert synchronization rights, according to the legal platform www.anwalt.de. The Hamburg law firm describes itself on your own website as an entertainment lawyer. It says a little more clearly: “We advise you on all aspects of the entertainment industry. Legal and entrepreneurial. In the areas of music, film, video and advertising through to influencers, fashion, models and games.”
Instagram users would have violated copyright by adding music to their own videos. The warning lawyers have discovered a legal loophole on Instagram, which they are now referring to.
Instagram currently offers three account types:
- Private,
- creators and
- Business.
The use of the platform’s own music library to accompany reels and stories is only permitted on Instagram for private purposes. In the meta guidelines, the wording reads: “In particular, the use of music for commercial or non-private purposes is prohibited unless you have obtained appropriate licenses.”
And that’s where the legal loophole lies.
What many Instagram users don’t know: A private account, as defined by Instagram, is not synonymous with private use. Lawyers specializing in media and copyright law are only interested in whether a user is making money with his channel. Then, in case of doubt, it is a matter of commercial use, even if the user has a private account on Instagram.
That’s why not only Instagram users with a creator or business account are affected by the warnings. Anyone who has reached a certain range with their private account should be careful when using music or, ideally, avoid it altogether.
Also interesting: You should definitely switch off this Instagram setting
Doesn’t Instagram have the rights to the music offered?
The unequivocal answer is: nobody knows. The so-called Copyright Service Provider Act (UrhDaG) has been in force since 2021. This linguistic name monster basically regulates the use of music on platforms like Instagram.
The legislator is aware that the use of music on social media cannot be curbed by legal means. That’s why platforms like Instagram are legally obliged to “make best efforts to acquire the contractual rights of use for the public reproduction of copyrighted works.”
It is not clear to outsiders whether Instagram, TikTok and Co. are actually in exchange with record labels to acquire rights. Of course, such talks take place behind closed doors.
That is why Section 6 of the law states: “If the service provider is permitted to play a work to the public, this permission also applies to the benefit of the user, provided that the user is not acting commercially or does not generate any significant income.”
In generally understandable language, this means: If, for example, Instagram has reached an agreement with a record company to use certain songs, then this right of use also applies to the users of this platform – but only for private purposes.
Influencers who regularly advertise certain products on their channels are not allowed to do this. However, this group also does not have access to the music library, at least according to the platform guidelines. Because users with a business account only have access to a slimmed-down sound collection with license-free music.
It is therefore legally questionable for those users who would not call themselves influencers, but who, from the point of view of the lawyers, are commercially active on Instagram.
And what about the ’15 second rule’?
Within the social media community there is constant talk of a ’15 second rule’. Accordingly, it is legal to use up to 15 seconds of a copyrighted song.
Caution – the clear answer here is: It depends. Paragraph 10 of the law, which has been mentioned several times, states that this is a “minor use”. However, this must not be equated with a general right of use.
From today’s point of view, there is only a so-called “irrefutable assumption”, it says in paragraph 9. Now it’s getting legally subtle: If a piece of music is used for a video on Instagram for no longer than 15 seconds, the assumption is obvious that this is the case allowed.
However, the legal situation may change in the future. Then the “irrefutable presumption” suddenly becomes a copyright infringement. The unsuspecting video creator is then liable to the rights holder due to the new legal situation. That is also tough in the Meta’s Music Guidelines: “You are responsible for the content you post!”
What should Instagram users do?
If a warning has already landed in the mailbox, do not ignore it. This is by no means a rip-off, as one might suspect at first glance as a person affected.
As we have shown in this article, the legal situation is more than vague. Because neither platforms like Instagram nor the legislature provide a clear definition of when an account can be assumed to be used privately and when not.
It is best for affected users to get the advice of a lawyer. Because in this case, ignorance does not protect against punishment.
This is not legal advice!
This article does not replace advice from a specialist lawyer. If you are unsure about your activities on Instagram, do not wait for a warning. Contact a media and copyright expert beforehand.
Instagram users who have a considerable reach but have not yet received any unpleasant mail should take a critical look at their own reels and stories.
From a legal point of view, all videos with music should be taken offline. Presumably, there will soon be the first judgments that define the legal framework more precisely. Until then, you’d better refrain from using copyrighted pieces of music as background music for the story.
Only those people who are on Instagram and regularly post animal photos or pictures from Grandma Erna’s last birthday party actually have nothing to fear.