Major retail brand H&M has found itself in legal trouble, after being called out for using music in a social media campaign without the owners’ permission.

What happened?

Mike Katz, a Melbourne based musician and producer (who goes by the name Harvey Sutherland), penned a track called Bamboo.

Katz discovered H&M used the piece in an Instagram campaign about the history of blue jeans. An Instagram user asked H&M for the name of the piece, with H&M responding that it was specially produced for them.

Katz responded, claiming ownership of the piece and inviting H&M to contact him to discuss.

Imagine H&M’s surprise when they discovered that Katz has practised intellectual property law. Ooops.

H&M subsequently apologised to Katz and removed the post.

Using music in a campaign

Music comprises several pieces of intellectual property – there’s copyright in both the lyrics and music, and other “mechanical” rights regarding production, publication and broadcasting of the piece.

A further complication is that all these rights are not necessarily owned by one party, and therefore licensing music can involve arrangements with more than one party. To avoid this, most brands use specialist music licensing companies.

However, this isn’t necessarily hassle-free. Last year, the New Zealand National Party was ordered to pay damages to Eminem after using the song “Lose Yourself” in its 2014 election advertising, despite having licensed the piece from a music licensing company (a matter which the NZNP has apparently taken up with that company).

The takeout

Before using music in an advertising campaign, ensure you have the right to do so. Using a music licensing company is the easiest option, but make sure you have a written agreement which protects you against claims of intellectual property infringement.

Get some legal advice if you’re unsure.

ABOUT THE AUTHOR
David Kelly is the founder of KHQ Approved, which offers fixed fee solutions across a range of areas (including marketing law and contract review).  Peace of mind from an experienced team for a reasonable price.