After winning a Grand Prix at Cannes Lions for their one-second song campaign, Budweiser came under fire for its disregard of music licensing. The brand, which claims to be “the beer behind the music”, made a bold move when stating it paid nothing for music rights in its award-winning ads. The campaign – which posted one-second clips of popular songs on TikTok and gave Budweiser coupons to everyone who guessed the song correctly – bragged about how one-second is the minimum needed to identify a song, and the maximum allowed without having to pay for music. Unfortunately, this minimal amount of copyright knowledge is bringing maximum damage to Budweiser’s image.
What is “fair use” and does it apply to brands?
Budweiser has tied its brand closely to music and made it a significant part of its identity. For other brands though, music plays a smaller role, and copyright can be especially confusing. With its one-second song campaign, Budweiser was referencing the concept of “fair use”, which in the U.S., says that you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. Fair use claims are assessed by judges using the below four factors:
The purpose and character of the use
Was the copyrighted work used commercially or not for profit? Was it used for news or educational purposes?
The nature of the work
Was the content containing the copyrighted work commentary or parody? Was the original work used or an altered version?
The amount and substantiality of the portion used in relation to the work as a whole
How much of the work was used and which part(s)?
The effect on the market or potential market for the original work
Was the content containing the copyrighted work replacing the original work or enhancing it?
Brands cannot rely on “fair use” to avoid music licensing
As you can see from above, it’s not crystal clear if Budweiser’s ads would be considered fair use. On one hand, the songs were used commercially, which requires a music license. The amount of each song used was just one second, but nothing in the fair use doctrine determines that this is a minimum threshold if it is a substantial part of the song (which it presumably is here since it’s a recognizable sample for fans). They may be able to argue that the ads had a positive impact on the songs, since they were targeted at fans who love and support the music, but only a judge can determine, while balancing the four factors, if a use was “fair”.
However, when it comes to music rights and copyright in general, there are strong arguments against these ads being fair use. Perhaps most importantly that these songs were used commercially to make money for Budweiser, and zero dollars went to the artists. Even one second of a song is subject to copyright protections, especially when used to drive revenue. Beyond legality, there’s ethical and reputational factors to consider as well. A brand so closely tied to music should make sure they use music properly to set a good example and protect their reputation.
We continue to see new lawsuits against major brands for their improper use of commercial music on social media, and this campaign is another example of why brand marketers need to learn about music licensing and copyright. It’s not safe to rely on fair use if you’re using music commercially, and it’s also not safe to rely on social media music libraries as they don’t always have the correct licenses for brands. For a crash course on copyright, check out our free eGuide for marketers: Mastering music rights on social media.
Check your ads and social media posts for copyright infringement
As a leader in music recognition technology, we can also correctly identify a song from just one second of audio. We use our powers for good and help brands identify music on their social media accounts so copyright infringement can be avoided and music rightsholders can be paid properly. By auditing your accounts and monitoring for music use going forward, you can ensure copyright compliance, avoid bad press, and protect all the hard work you put into your campaigns.
While Cannes Lions investigates Budweiser’s big win, you should investigate your music use on social media. Reach out to our team to learn more about music monitoring for brands.
