Raenelle Manning is an IPilogue Writer and 2L J.D Candidate at Osgoode Hall Law School.
If you have ever incorporated music into your Instagram or Facebook videos, you may have committed copyright infringement. But don’t worry, you won’t need to get a lawyer! On July 20th, 2022, Meta Platforms Inc. (“Meta”) was hit with a $142 million lawsuit. The suit was filed in California Northern District Court by Swedish music label and publishing company, Epidemic Sound. They claimed that Meta, on its social media platforms, has stolen hundreds of their content. In the official pleading, they argued that Meta violated the US Copyright Act 17 USC § 501 for direct, induced, and contributory copyright infringement.
Who is Epidemic Sound?
Influencer culture and, by extension, content creation on social media, has become increasingly prevalent in recent years. In the past, content creators have had issues incorporating music into their posts due to copyright holder policies. YouTube, especially, has been known to enforce copyright law by either muting or taking down infringing content. Epidemic Sound solves this problem by offering music licenses to creators who publish on platforms like Facebook, Instagram, Twitch, TikTok and YouTube. For a $15 USD per-month subscription, users receive a license to use material from a catalogue of 125,000 sounds and songs. Epidemic holds the copyright to the content in their catalogues and offers their licensees (subscribers) guaranteed protection from copyright infringement claims. However, they emphasize that only subscribers are authorized to use their content. This is where Meta is implicated.
The Infringement
This action is primarily about Instagram’s “Reel Remix” and “Original Audio” features, which Epidemic claimed encourages and enables users to commit copyright infringement. The Remix feature allows users to incorporate their own videos into existing reels. It is similar to TikTok’s Duet feature which simultaneously plays user’s videos on a split screen. The “Original Audio“ feature also allows users to extract the music from existing video posts and include it in their own content. However, users who upload with these features usually do not have license to use the music in the original video which they extracted the music from. Even if the original video creator acquired their music through their Epidemic subscription, unsubscribed third parties essentially use Epidemic’s content without authorization. Epidemic’s suit also argued that Meta, itself, engages in copyright infringement by storing, reproducing, and distributing their content on Instagram’s Music Library. When users select songs for their posts, Meta makes a copy and transfers it to the user in violation of Epidemic’s exclusive reproduction and distribution rights. Epidemic predicts that there are currently over 80,000 infringing videos circulating daily on Instagram and Facebook.
Epidemic also mentioned that they previously informed Meta about this issue, but Meta has refused to provide them with compensation or the right management tools to identify and protect their works. The claimed statutory damages for this action are quite significant, but under US copyright law, parties are entitled to $150,000 per infringement. Since Epidemic owns the copyright to the sound recording and musical composition of the 950 songs it suspects are on Meta platforms, the price will be high. It is interesting that Meta has not taken precautions against such expensive litigation. Meta has not yet responded to the lawsuit, so we will have to wait to see how this case unfolds.