Warnings for the use of music on Instagram by the law firm IPPC Law from Berlin for B1 Recordings GmbH
Nowadays, it is impossible to imagine life on the Instagram platform without music accompanying photos and reels. However, it should not be forgotten in this context that music is fundamentally a work protected by copyright and that violating the rights of the rights holder can result in high costs.
Recently, there has been an increase in warnings issued by Daniel Sebastian’s Berlin law firm IPPC Law due to the illegal use of music such as the song Jaxomy x Agatino Romero x Raffaella Carrà – Pedro on Instagram. In the warnings, companies are asked to pay several thousand euros and to submit a cease-and-desist declaration.
Legal background of a warning issued by lawyer Daniel Sebastian of IPPC Law for B1 Recordings GmbH
Music is generally protected by copyright. In order for it to be used on the Instagram platform, a license is required, which can be granted by the rights holder (usually for a fee). Since such a procedure would be too complicated in practice for using Instagram, Meta (Instagram’s parent company) has set up its own music libraries containing music that is licensed for use on Instagram. In this context, Section 6 of the Copyright Service Providers Act (UrhDaG) is particularly important. Accordingly, a license from the platform user also benefits Instagram in the case of public reproduction (paragraph 2) and a license from Instagram also benefits the users (paragraph 1). Reference is also made to the terms of use of Instagram and the music libraries. However, caution is advised at this point.
Private use of music from music library on Instagram
For private use, the music from Instagram’s music libraries can be used. Instagram has agreed licenses for these pieces of music with collecting societies, such as GEMA. According to Section 6 Paragraph 1 of the UrhDaG, these also apply to private Instagram users, so that the music from Instagram’s music libraries can be used without hesitation. As of today (September 6, 2024), this is a snapshot and may change at any time due to a change in Instagram’s terms and conditions. Therefore, this note does not replace legal advice. Anyone who is unsure about what is and is not allowed on Instagram should urgently seek legal advice.
Commercial use of music from the music library on Instagram
However, the situation is very different when it comes to commercial use. According to Section 6 Paragraph 1 of the UrhDaG, Instagram’s license does not apply to users. This is expressly referred to again in Instagram’s terms of use. Instagram’s music libraries may therefore not be used commercially. An exception to this is the Facebook Sound Collection, which can also be used commercially, but special attention must be paid to the specifications in the terms of use. The use of royalty-free music or specially licensed music is also possible. If the music from Instagram’s music library is used commercially, this is unlicensed use, which can have legal consequences.
How do demands for possible amounts to be paid in warning letters consist?
The total demand in a warning letter is generally made up of various demands. The total demand is significantly influenced by various factors. The following play a role:
- the amount of any compensation
- the amount of legal fees and, if applicable, investigation costs
- A possible cap on lawyers’ fees according to Section 97a Paragraph 3 of the Copyright Act (UrhG)
- The duration of the unlawful use of copyrighted works
- if applicable, the size of the disputing companies/parties involved
- The number of views of the content in which copyrighted works are used.
A significant item is usually damages. This is calculated using the so-called license analogy. The duration of use and the fact that it is commercial use, the size of the company and the number of visits are decisive factors for calculating these fictitious license costs. In this case, damages of €1,500 were calculated for a small company. Whether the claim is justified and whether the amount has been calculated correctly cannot be determined from warnings by a legal layperson. There is often no concrete evidence that suggests that the damage is actually so high. It can happen that claims for damages do not exist or exaggerated claims are made.
In addition, the costs of legal action are usually always charged. These consist of legal and investigation costs. In the case of commercial use, the legal cap on the subject value according to Section 97a Paragraph 3 of the Copyright Act does not apply to commercial use. In the warning letter presented to us, this was set at €16,500, which would lead to legal costs of €1,214.99.
In addition, there are costs for the investigation amounting to around €150. These are not broken down further.
The alleged copyright infringement already leads to a claim totaling almost €3,000. If it is a larger company, or a longer period of use, etc., the claims can be considerably higher.
How should such a warning be handled by lawyer Daniel Sebastian of IPPC Law for B1 Recordings GmbH?
Under no circumstances should the warnings simply be ignored. The deadline should not be allowed to pass either. Otherwise, the warning will often be pursued in court or debt collection agencies will be called in. This can lead to significantly higher costs. It is therefore advisable to seek legal advice early on.
Should the pre-written cease and desist declaration in the warning be signed by lawyer Daniel Sebastian from IPPC Law for B1 Recordings GmbH? No! Not without prior examination!
An essential part of a warning is the demand to submit a cease and desist declaration. In this case, the person obliged to cease and desist (the addressee of the warning) undertakes to refrain from this copyright infringement in the future towards the creditor (here the alleged rights holder). In order to ensure this refraining, a contractual penalty is agreed, i.e. a (very high) fine that the person obliged to cease and desist must pay if he nevertheless commits such a copyright infringement and acts contrary to the obligation to cease and desist.
Signing often has far-reaching consequences and may be valid for life, so there is also a risk of having to pay the contractual penalty for this period. Often, the warning letter also includes pre-written cease-and-desist declarations, which are often disadvantageous to the person who is obliged to cease and desist. Before submitting a cease-and-desist declaration, it is therefore advisable to seek legal advice in order to avoid lengthy problems and costs.
If you have any questions about warnings issued by lawyer Daniel Sebastian of IPPC Law for B1 Recordings GmbH, please contact Oliver Eiben, attorney at law of the Rieck and Partner law firm, using the contact form directly here or at oliver.eiben@rieck-partner.de.
