Fair use myths in brand videos
Short answer
Fair use almost never covers a song in a brand video. Fair use is a defence a court weighs case by case, not a rule you can rely on in advance. Advertising and product promotion are commercial, the music is used for the same purpose it was made for (to entertain and set a mood), and it can cut into the licensing market. Short clips, credits and disclaimers don't change that.
What fair use actually is
Fair use is a US legal defence. If you're sued, you can argue that your use was fair, and a court weighs four factors to decide:
- Purpose and character of the use. Is it commercial? Does it transform the original into something new, like criticism, commentary or parody?
- Nature of the work. Creative works like songs get strong protection.
- Amount used, relative to the whole and to its heart.
- Effect on the market for the original, including the market for licensing it.
Notice what fair use is not. It isn't a permission slip. Nobody grants it in advance. You only find out whether your use was fair after someone sues and a judge decides.
Myth 1: "Under 10 (or 15, or 30) seconds is fine"
There is no safe number of seconds. This myth is everywhere, but no US statute or rule sets a length below which music is free to use. TikTok and Reels clips are short by design, and that's exactly the format labels are suing over. A 12-second hook is often the most valuable part of the song.
Myth 2: "We credited the artist"
Credit is courtesy, not permission. Writing "Music: Artist Name" in the caption doesn't license anything. If anything, it shows you knew whose song it was.
Myth 3: "We're not making money from the video"
The video doesn't need to be monetised to be commercial. A brand post that builds awareness, links to a shop, carries a discount code or is part of a campaign is promoting the business. That's commercial use.
Myth 4: "The platform let us pick it"
The song library in TikTok and Instagram is licensed for personal, non-commercial use. Being able to tap a sound doesn't mean your business is licensed to use it. Business accounts are steered to commercial libraries for exactly this reason.
Myth 5: "We added a disclaimer: no copyright intended"
A disclaimer doesn't change whether something is infringing. "No copyright infringement intended" is one of the most common lines on infringing videos. Courts don't treat it as a defence.
Myth 6: "We changed it: sped it up, cut it, remixed it"
Altering a song doesn't make it a new work you own. A sped-up hit is still the hit. An edit or remix made without permission is generally a derivative work, which the owner also controls. More on sped-up and remixed songs.
Myth 7: "Everyone else does it"
They do, and some of them are in court. Labels have filed claims against Marriott, Crumbl, DSW, Quince, Kroger, PacSun and others over exactly this kind of content. The scale of the practice is what made it worth suing over. See the lawsuit tracker.
When fair use can genuinely apply
There are real fair uses of music: a critic reviewing an album and playing a few bars, a news report on an artist, a true parody that comments on the song itself. What they share is that the use is about the music. A brand video that uses a song to make a product feel exciting is using the music for the same reason the song exists. That's why the defence rarely works for marketing.
A quick scenario
A coffee chain's social team uses eight seconds of a chart hit under a latte art video and writes "song by [artist], we don't own the rights" in the caption. The team believes three things protect them: the clip is short, it's credited, and it isn't an ad. Three weeks later the post is boosted because it performed well. Now it's a paid ad using a hit song with a caption admitting they don't own the rights. Every one of their three protections was a myth, and the boost made it worse.
Why lawyers rarely lead with fair use in these cases
When a brand gets a demand letter over music in its social posts, its lawyers will look at every possible defence. Fair use usually isn't the one they build the case on. Arguing it is expensive, it goes to the facts of each video, and the courts have been consistent that using music to make an ad more appealing is the kind of use the owner is entitled to charge for. Most of these disputes end in a negotiated settlement instead.
The practical rule
For brand content, assume fair use won't save you. Use music you've licensed, music from a library that covers business use on that platform, or original audio. If you're unsure whether a specific post is a problem, get it checked before you put money behind it.
Want to know which of your posts rely on a myth? We'll check your last 90 days and flag every song that isn't cleared. First check from $500 for up to 100 posts, free if there's nothing to fix.
General information, not legal advice. Fair use is decided case by case.
Common questions
How many seconds of a song can I use without a license?
There's no safe number. No US rule sets a length below which music is free to use in a brand video.
Is it fair use if I credit the artist?
No. Credit isn't permission and isn't a fair use factor that helps a commercial post.
Is it fair use if the video isn't an ad?
Organic brand posts are still promotional, which courts generally treat as commercial. Boosting makes it clearer still.
Can a parody be fair use?
A true parody that comments on the song itself can be. Using a song to sell a product isn't parody, even if the video is funny.
Does fair use apply outside the US?
Fair use is a US doctrine. Other countries have narrower exceptions, often called fair dealing, which rarely cover advertising.
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.