Background music filmed in your store: is it a copyright problem?
Short answer
It can be. The license that lets your store, restaurant or gym play music to customers covers public performance in that space. It doesn't cover putting the song into a video you publish. If a recognisable song is audible in a brand post, the platforms can match it and the rights owner can treat it like any other use. “Incidental” use is a real legal idea, but it's narrow and decided case by case. The cheap fix is to turn the music off while you film.
The license you have isn't the license you need
Businesses that play music to customers usually pay for it. In the US that's typically through performing rights organisations like ASCAP, BMI and SESAC, or a background music service that includes those licenses. In Indonesia it runs through LMKN and the collecting societies. Those licenses let you perform the music in your premises.
A video is a different use. Recording a song into a video and publishing it involves copying the recording and syncing the song with pictures, which needs permission from the label and the publishers. Your store's license doesn't stretch that far. So the radio in the background of a perfectly innocent “new arrivals” Reel is, legally, unlicensed music in a brand post.
“But it was only in the background”
US law has doctrines like fair use and de minimis use, and courts have sometimes found that a fleeting, barely audible snatch of music in the background didn't infringe. But these are defences you argue after you've been accused, they're decided on the specific facts, and they get weaker when the use is commercial, the song is clearly recognisable, or it plays for more than a moment. A brand promo video tends to fail on all three.
There's also the practical side. TikTok, Instagram and YouTube match audio automatically. They don't ask whether the song was in the background. If the match is strong enough, the post can be muted, claimed or blocked whatever the legal argument might be. See fair use myths for brand videos for more.
Where this happens most
- Retail stores and malls: try-on videos, new-arrival walkthroughs, staff picks.
- Restaurants, cafés and bars: food close-ups, behind-the-counter clips, opening-night videos.
- Gyms and studios: class clips with the instructor's playlist booming. Fitness brands are a frequent target.
- Events and activations: a DJ set or venue sound system behind your brand moment.
- Franchise locations: dozens of local accounts filming in stores that all play the same radio.
What about videos your customers film?
User-generated content filmed in your store has the same issue, plus another one: you need the customer's permission to use their video at all. When a customer posts a clip from your store on their own account, that's their content. The moment you repost it on your brand account, feature it in an ad or put it on your website, it becomes your brand content. Check the music as you would for your own videos, and get written permission from the person who filmed it. Our guide on using customer videos in ads covers the permission side.
A typical example
A fitness franchise encourages each location to post class clips. The instructors' playlists are mostly chart hits. Within a year there are hundreds of short clips across 30 local accounts, each with a recognisable song at full volume. The franchise's head office pays for music licenses for the studios and assumes that covers it. It doesn't, and the franchise brand is the obvious name on every post.
Multi-location brands carry this risk at scale, because each store or studio films slightly differently and nobody sees all the posts together.
How to film safely
- Turn it off. Pause the store music, the class playlist or the TV for the few minutes you're filming. Add licensed music in the edit if you want it.
- Record clean audio. Voiceover, natural sound and dialogue work well on social and avoid the issue entirely.
- Replace the audio in the edit. If you can't control the room, mute the original track and lay a licensed one over it.
- Brief every location. For franchises and multi-store brands, a one-page filming rule shared with every store manager prevents most problems.
- Check event contracts. If a DJ or performer plays at your event, agree in writing what you can do with footage, and remember their set may contain other people's songs.
Where OKtoRun helps
Background music is one of the things song recognition catches that people don't notice by eye. When we check an account, we listen to every post, including store and event clips, and mark each one green, yellow or red with a fix. A reviewer confirms every flag. The first check is from $500 for up to 100 posts, free if there's nothing to fix. Multi-location brands can see our page for franchise marketers.
General information, not legal advice. Fair use and incidental-use questions depend on the facts; ask your lawyer about a specific video.
Common questions
We pay ASCAP and BMI for our store music. Doesn't that cover our videos?
No. Those licenses cover playing music to people in your venue. Putting a song into a published video is a different use that needs permission from the label and publishers.
Is background music in a video fair use?
Sometimes a brief, barely audible snippet has been found not to infringe, but it's decided case by case and is harder to argue for commercial brand content.
Will TikTok mute a video because of store music?
It can. The platforms match audio automatically, whether the song was intended or not.
What if a customer films in our store and we repost it?
Once you repost it on your brand account, it's your brand content. Check the music, and get the customer's permission to use their video.
Can we just turn the music down instead of off?
If the song is still recognisable, it can still be matched and claimed. Off, or replaced in the edit, is safer.
Part of: Music licensing for brands
Related guides
General information, not legal advice. Platform rules and licenses change; check the current terms or ask your lawyer about your situation. Lawsuit figures are as reported and represent claims, not findings, unless noted.