Received a cease-and-desist letter for IP infringement on social media? Read this!

We have seen an increased number of clients coming to us having received a threatening legal letter alleging copyright infringement following use of music or images on social media. If you have received one of these letters recently, read this article before making your next move.

So, a cease-and-desist has landed…

A “cease-and-desist” letter is a letter accusing you of infringing someone’s intellectual property and demanding that you immediately cease the alleged infringing activities.

Often, these letters will also demand payment for significant damages. Other times, the claimant will be seeking damages roughly equivalent to how much it would cost to instruct a lawyer to prepare a robust defence or negotiate a lesser settlement. In these circumstances, the claimant is essentially hoping that you decide to pay the settlement sum and sign up to their terms because, either way, you’re out of pocket.

The threat? If you do not comply and pay up, the claimant is going to commence court proceedings against you.

What do you do?

The first step for you is to pick up the phone to a specialist copyright lawyer.

As part of that initial consultation, we would be looking to establish whether or not you are in the wrong. We would subsequently then work out a strategy, remaining mindful of the costs position and ensuring any next steps are proportionate.

In reality, nine times out of ten the other side wants to avoid litigation, so a period of negotiation begins. Therefore, speaking to a specialist lawyer is going to be very helpful and, ultimately, vital to getting your next move right.

Have you got permission to use the song or image?

A basic principle of copyright law is that unless you have explicit permission to use a protected song or image, then you should not use it. Doing so without permission is likely to amount to copyright infringement. Therefore, if you can show you had permission to use the copyright work, then you are in a stronger position than if you cannot.

It follows that a good starting point is to work out whether you had a licence to use the song or image in question.

As a business account user on Meta platforms or TikTok, you will have access to a different catalogue of music for use on your posts than on personal accounts. You should only be using music that is available in the library accessible to your account type. Furthermore, both Meta and TikTok are clear that the licence does not extend to use outside of the Meta and TikTok platforms.

Essentially, provided you are using a song that is in the correct library for your type of account on that particular platform, the practical risk of receiving a complaint you are forced to defend should be lower – as should the legal risk, in theory. That said, the libraries can change, as can the terms and conditions. So, it is sensible to keep screenshots to show that the track was in the correct library at that point in time, and what the music terms and conditions for that platform said at the time of the post. That way, you can show you were at least trying to play by the rules in the event you receive a cease-and-desist.

On the other hand, if you have added music to a post from outside the music library, then the likelihood is that you are culpable for copyright infringement unless you have obtained permission directly from the right holder.

You will also need a licence to use images in your posts.

How do you get permission?

Setting aside the position with social media music libraries, the easiest way to get permission is to contact the right holder and ask. It does not need to be a formal longform licence – simple written permission in an email would be adequate (if that is the best you can do in the circumstances).

If it is a photograph, reach out to the photographer. Alternatively, image libraries such as Getty Images license images for a fee (but always make sure you are buying the licence appropriate to the proposed use of the copyright image).

Obtaining a licence could be a time consuming and costly process for music. That, combined with perceived risks around use of music from social media platform music libraries, is why many brands have a policy of not using any music on social media. Avoiding the use of music in posts takes away the copyright infringement risk in relation to music and avoids getting stuck in a lengthy music clearance process.

We recently settled a case for a client involving the use of music on social media (the use of which was undisputed), where the claimant record label and publisher were seeking to recover substantial damages.

As our client had instructed a third-party marketing agency to handle its posts on social media, they were unaware of the facts of the alleged infringement. The marketing agency said that the music had been available through the appropriate libraries at the time the post went live. The claimants disputed that.

The name given to a licence that grants permission to overlay music on moving images is a “synchronisation” (or “sync”) licence. The reality for brands is that the record label and publisher can charge what they want here. That means that in the event of an alleged infringement, the negotiation for a retrospective sync licence can be tough and costly. In this case, while we were ultimately able to agree a more reasonable licence fee (and save our client a substantial sum of money in the process), the pain could have been avoided had there been a clear licence in place to use the music from the start.

It should also be noted that for both music and images, some copyright owners make the works available under the Creative Commons licence. There are different types of Creative Commons licences, but generally they permit the public to use the works free of charge, subject to compliance with certain terms that normally go to attribution of the author or possibly restrictions on commercial use. Breach of the terms could give rise to copyright infringement, and so some due diligence around the type of Creative Commons licence in place can help businesses navigate any risks here.

Can’t I just credit the author/copyright owner?

No. It is not a defence to infringement to credit the copyright owner, contrary to popular belief.

Wider considerations

Cease-and-desist letters can be threatening and often enclose settlement undertakings that the other side say you have to sign up to or else they will see you in court. If you have never received one before, the temptation can be to capitulate. Always take legal advice first.

An individual client recently received a strongly worded cease-and-desist from a law firm regarding their use of a photograph in a LinkedIn post. The law firm was acting for the photographer and was seeking damages that fell into the latter category of complaint, described at the beginning of this article.

Two things arose here. On closer inspection, the photograph was available to use under a Creative Commons licence. This meant we were able to go back and dispute any infringement.

The other point of contention was that the law firm was demanding that our client agreed to certain terms (including penalty clauses), which were clearly an overreach and unreasonable in the circumstances. The claimant’s position was that these terms were a legal requirement. We were able to advise our client that this was simply not correct.

Thankfully, our client was an experienced user of legal services and knew to ask for a high-level review to identify these red flags. A less savvy recipient of such demands may have signed up and ended up in a sticky situation that could have been avoided.

Speak to a lawyer

If you receive one of these letters, contact us. We deal with these issues regularly and have managed to achieve various settlements that give our clients peace of mind. The letters are usually threatening and will make a compelling case on the face of it. Therefore, it always helps to have an experienced set of eyes look over the papers and provide at least a preliminary view on a way forward.