This past summer, big and small brands jumped on a TikTok trend. They used a clip of a seventh grader singing "Where's My Dad" from Finding Nemo JR. The problem is that the music wasn’t made available in TikTok’s Commercial Music Library. It should have been licensed from Music Theatre International on behalf of Disney-Pixar. Using it without permission could put any brand in legal hot water at any time. 

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Then there’s Bill Hader dancing inside a glass box from a cut-for-time 2015 Saturday Night Live sketch.  It was also a “feel-good meme of the summer” used by creators to either celebrate or self-deprecate. But the problem, once again, is that brands don’t fall into the same category as regular folks. While end users can frequently share copyrighted work without permission under fair use guidelines, brands can’t. 

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And there are the countless songs used on TikTok and Reels. While brands are encouraged to “jump on trends,” they need to jump carefully. They can use pre-cleared songs from TikTok’s Commercial Music Library (which is not the same as the large catalog available to individual users), original music, royalty-free music or music they’ve licensed. Because copyright infringement can lead to more than just a strongly worded cease-and-desist letter.

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Last year, Bang Energy lost separate lawsuits from multiple music labels for infringing hundreds of artist copyrights in ads on TikTok and Reels. (Since losing those cases and numerous others including claims of false advertising, Bang filed for Chapter 11 bankruptcy. Its assets were acquired by rival Monster Beverage Corp.)

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That’s why the smartest and safest bet is for brands to invest in the creation of their own original audio and music assets, avoiding having to pay millions in potential damages and setting itself up as a leader, not a follower, when it comes to social media trends. 

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