Instagram Reels: – What is deemed fair use of music for businesses?

In November, I produced an Instagram (IG) Reel for our recent ‘Office Dog of the Year 2021’ campaign. I enjoyed creating the video of our office dog, Sky’s day-to-day in the office, and as I’m writing this blog it is our most successful reel with just under 5k views and 104 likes (click here to have a look for yourself!). However, when creating it I was just about to add the cherry on top with the right music, I came across an issue that is likely to bother many marketing creators! Instagram told me that I wasn’t allowed to use a Doja Cat song which was trending at the time across multiple TikTok and Instagram Reels. I was confused and annoyed. Why? Was this personal? Everyone else was using it.

The purpose, I thought, of the apps is to use recognisable and catchy sounds and songs as most trends are based around these. In my opinion, it seemed counterintuitive, but this got me thinking, and ultimately inspired me to write about my encounter to explore what is deemed fair use of music for businesses. 

The problem

Why is it that personal accounts and influencers with millions of followers can use copyrighted music and sounds for free whilst businesses like redPepper Marketing can’t? So what is deemed fair use of music for businesses?

My findings

When researching the matter, I came across a piece of information that the redPepper team found very interesting. As our Instagram account is set as a business, in our case marketing agency, in the category section, unlicensed music is blocked and, therefore, unable to be used in a commercial context. But there is a hack, when I tried changing the category to ‘Entrepreneur’ the whole library of sounds opened up on our account. What’s even stranger is that when I changed it back, the app let me keep the song I picked before and seemed to work just fine (although I didn’t upload a reel with it as this had opened up an ethical dilemma for us as a company).

I explained my experience to my colleagues in the office and, it led to a discussion – what is seen as fair use of an artist’s music on reels? And what difference does it make for an entrepreneur to be able to use music for free but a business cannot? Is this fair to musicians and creators?

My research on this issue led me to Instagram’s FAQs. Information provided by Instagram is vague and doesn’t answer this question about the entrepreneur category. It states that it is this way because ‘our agreements with rights holders are intended to enable personal, non-commercial uses of music’, but why are entrepreneurs considered to be personal and not commercial users? This rabbit hole has only really led to more questions than answers. Surely by definition, an entrepreneur is someone who sets up a business, taking on financial risks in the hope of profit!

Why is music choice so important on an Instagram Reel?

It essentially comes down to how sounds work in the algorithm on IG Reels. Think of a sound like a hashtag; watching content with that sound then leads to recommendations from IG for other reels with the same track– so it might be insinuated that entrepreneurs could use this to market their product/services, without having to pay any licencing fees for the music and even advertising fees in general. Or businesses could use the hack we found but that’s not ethical.

You could argue that if IG only wants personal accounts to use music for free, but then shouldn’t hashtags on IG Reels be only for personal use? Much like music, following hashtags results in a similar sort of recommendation on your feed. Although very specific and tailored to trends/audiences, businesses can use these to reach the right people – for me, this doesn’t make any more sense than using sounds and songs. Of course, it wouldn’t be fair for an artist to miss out on revenue from their property, but shouldn’t this then be the case for those who created hashtags also? This also begs the question of what makes an entrepreneur different? We couldn’t think of a plausible explanation as to why the category would be any different to other businesses and ultimately what is deemed fair use of music for businesses.

My conclusions

Ultimately, this fair-use debate on IG Reels is a peculiar one. Would it make more sense for Instagram to enable artists to monetise their songs on the platform rather than excluding most businesses and leaving entrepreneurs to use audio in any way, shape or form? Or perhaps think of a better solution because the current system doesn’t work all that well for businesses that have a reduced reach on the platform. For businesses, this issue makes their IG Reels platform far less attractive to use, the appeal of which was to create short-form content alongside popular sounds, which generated greater reach than an ordinary IG post. It seems that this clamp-down on music will reduce the usability for businesses on the platform, but what effect will this have in the future?