Warning letter because of music on Instagram or TikTok?
What to do now!

Instagram music warning: help with reel, story and video warnings (incl. TikTok)

Many of those affected are taken by surprise because the song was "available in the app after all". In practice, this is exactly where the problem lies:

The platform function does not automatically replace the required rights - especially not for business / non-private content.

Instagram and TikTok make it extremely easy to use music. Legally, however, it is not the technical possibility that matters, but whether your specific use is licensed.

This constellation is typical:

• a reel/video uses a known track from the music library
• the contribution has a commercial reference (product, service, brand, cooperation, self-employment)
• Right holders assess the use as not covered by platform licenses
• A warning letter with injunction and payment claims follows

We know the intricacies and will be happy to explain what applies in your case.

A warning letter for using music on your Instagram account or TikTok video usually has a similar structure. At the beginning of the letter, the law firm (here IPPC Law) names one of the rights holders of the music title (in this case B1 Recordings GmbH). This is followed by a mention of your Instagram account or TikTok profile and the name of the music title that is alleged to have been used unlawfully on your account.

This is followed by a reference to the terms of use of Instagram or TikTok. And finally, the claims that allegedly exist as a result of the copyright infringement are summarized, namely:

Injunctive relief, damages and reimbursement of the costs of legal action.

Many users assume that music can be used freely if it is available directly in Instagram or TikTok. In reality, however, use is only partially covered.

The platforms have obtained licenses for certain uses - but these generally only apply to private content. As soon as a post has a business connection, for example to advertise services, products or your own activities, this platform license is often no longer sufficient.

The decisive factor here is not whether your account is set as "private", but how the specific content is to be classified. Even individual posts with a business connection can mean that the use of music is no longer legally permissible.

Whether a music usage warning can actually be issued depends in many cases on one key question: Is your content legally classified as commercial?

Because only then do the restrictions of the platform licenses apply.

The classification is not based on fixed categories, but on an overall assessment of your profile and the specific content. The decisive factor is whether your appearance gives the impression to the outside world that it (also) serves business purposes.

Typical indications of commercial use are:

• Content related to your professional or self-employed activity
• Presentation of services, offers or projects
• Links to websites, stores or booking systems
• Cooperations, discount codes or other monetization
• an overall presence geared towards reach, visibility or brand building

Single posts may be sufficient to justify such a classification. In practice, there is often no clear distinction between "private" and "business".

Important: Even a formally "private" profile does not protect against legal classification as commercial if the content is structured accordingly.

Even if the use of music can actually be legally problematic in individual cases, this does not mean that the claims asserted automatically exist in this amount.

In practice, it has been shown time and again that warning letters are based on general assumptions and do not take sufficient account of the specific use.

The amounts demanded are usually calculated using the so-called license analogy. This involves asking what remuneration would have been incurred if the use had been properly licensed.

This is often where the problem lies.

Because:

• It is often not specifically stated which license would actually be comparable
• The amounts stated are not always based on the actual scope or use
• Differences between small accounts and larger campaigns are sometimes not sufficiently taken into account
• The underlying license models are often incomprehensible to outsiders

In addition, the authorization of the claimant must also be checked in each individual case. Anyone asserting claims must be able to demonstrate that they are actually entitled to the corresponding rights.

This means:
Even if a copyright infringement has been committed, there is often some leeway regarding the amount of the claim - and in some cases also regarding the question of whether a claim can be enforced at all.

Many letters combine several claims:

1. Disclaimer: You should submit a declaration of discontinuance with a penalty clause. This is often the most important part because:
   - it binds you for years
   - it can trigger contractual penalties if "identical" content appears later
   
   
2. Compensation for damages (often based on "license analogy")
   The argument is often made: "You should have purchased a license for this use - therefore you owe the fictitious license fee." How high this license is to be set is not automatically clear and often disputed.
   
   
3. Warning costs: In addition, legal costs are often claimed (often on the basis of high object values).

Have it checked now whether the claims asserted really exist in your case and how you can best respond to them.

The pre-formulated cease-and-desist declaration is regularly too broad and formulated unilaterally in favour of the claimant.

In many cases, it makes sense to submit an adapted (modified) cease-and-desist declaration, which:

• eliminates the risk of repetition with legal certainty,
• but does not contain any unnecessary obligations
• and in particular does not create excessive risks of contractual penalties.

An unverified signature can have long-term disadvantages here. So have the cease-and-desist declaration checked by a lawyer in advance. Our initial assessment is free of charge.

The amount of the claim is usually calculated using the so-called license analogy. This assumes the license fee that would have been incurred for the specific use.

This is where doubts often arise:

• Does the license even fit the actual use?
• Were the scope, duration and context sufficiently taken into account?
• Are the underlying values comprehensible and documented?

In practice, it regularly turns out that the amounts demanded are significantly excessive or at least negotiable.

An often underestimated point is the so-called legitimation to take action.

The claimant must be able to demonstrate that they are actually entitled to enforce the claims asserted. The following questions arise in particular:

• Who specifically acts as the claimant (label, publisher, rights agency)?
• Which rights are being asserted (composition, recording or both)?
• Is the chain of rights documented in a comprehensible manner?

Missing or unclear explanations can have a significant impact on enforceability.

Not every account with a professional reference automatically leads to every single post being classified as commercial.

The decisive factor is always the concrete content:

• Does the post have a recognizable advertising or business purpose?
• Is there a direct connection with an activity or service?

It is worth taking a differentiated view here - blanket classifications often fall short. Benefit from a reliable, free initial assessment at Mueller.legal.

FAQ on copyright warnings for music on Instagram