For brands and influencers, social media is the ultimate double-edged sword. On one side of the blade, social media's scope, reach, and immediacy allow for unprecedented access to consumers around the globe and vast opportunities to build an audience and market their products and services.

However, the flip side of the social media sword is the legal exposure that can arise when copyrighted songs are used without proper synchronization licenses.

Both federal law and the policies of social media platforms like TikTok, Instagram, and X provide publishers, artists, and their counsel with powerful weapons to effectuate the prompt and efficient removal of infringing content from public view. While takedown notices issued under the Digital Millennium Copyright Act (DMCA) can certainly stop ongoing infringement in its tracks, such efforts also run the risk of destroying the very evidence that publishers’ attorneys need to prove their claims and obtain damages for the infringing posts. Additionally, preservation of infringing content can be key to any claim that the offending poster engaged in evidence spoliation after being notified of a potential infringement claim, which, in turn, could lead to the imposition of sanctions, adverse jury instructions, or negative inferences against a defendant.

For brands on the receiving end of these claims, this creates a critical tension. While removing allegedly infringing content may mitigate ongoing exposure, deleting a post without first preserving it can create serious legal risk. Once litigation is reasonably anticipated, brands have a duty to preserve relevant evidence. Failing to do so — even in an effort to comply with a demand or reduce damages — can open the door to allegations of spoliation.

That is why it is so critical for counsel representing brands to establish an evidence preservation infrastructure and have protocols in place that can be activated as soon as they become aware of a claim, but before the content is removed from public view.

Evidence That Counsel for Brands Need for Social Media-Based Copyright Infringement Claims

Brands and their counsel need to work together to preserve all evidence relevant to the copyright dispute, which includes far more than just a screenshot of the allegedly infringing post itself. Before removing the content, you should capture and preserve the following digital material:

• Evidence of Engagement. Don't just capture screenshots or screen recordings of the post, but also any engagement with the post, including all visible comments, likes, shares, reposts, and engagement metrics. These elements can be crucial in evaluating the scope of alleged infringement and assessing potential damages exposure.
• Infringing User's Profile Information. The account’s profile information is equally important in connecting the brand to the allegedly infringing posts and establishing the context of the use. Preserve screenshots of the account holder’s profile page, including follower count, bio information, verification status, and any other publicly visible details. If the brand operates a business account or monetizes its content, document this information as well, since it may be relevant to allegations of commercial use or willfulness.
• Metadata and Contextual Information. Document the date and time the claim was received, the URL of the allegedly infringing content, the platform where it appeared, and any hashtags or captions associated with the post. If the post contains music, preserve information about how the music was used, whether it was the entire composition or a portion, and how it related to any accompanying video or images.
• All Takedown Notices and Communications. Preserve all communications related to the claim, including any cease-and-desist letters, DMCA notices, platform correspondence, counter-notices, settlement discussions, and internal communications discussing the alleged infringement and the decision to remove the content. Once litigation is reasonably anticipated, these materials may become subject to discovery and should be handled accordingly.

How Page Vault Helps Attorneys Protect Their Clients’ Rights and Preserve Evidence of Infringement

Counsel for brands should help their clients implement systematic evidence preservation protocols as part of their overall litigation readiness strategy, including working with a technology designed for legal use and an expert service third-party like Page Vault. Proper collection and documentation methods are essential to ensure the evidence’s integrity and admissibility in any proceeding. Page Vault provides attorneys with the necessary tools and team of experts to properly collect, document, and authenticate social media evidence while maintaining the chain of custody.

We can provide an affidavit for any capture made in our system, whether in our web capture software or On Demand service. Our personnel can also serve as expert witnesses who counsel can call on to explain Page Vault's technology and storage processes, helping to further support the authentication of content captures used in social media-related copyright infringement litigation.

While a catchy tune can get stuck in your head for weeks on end, social media content is inherently ephemeral, vanishing quickly once removed. For attorneys charged with navigating copyright enforcement for music publishers across the vast social media landscape, failing to preserve evidence before issuing takedowns or cease-and-desist letters represents an unforced error that can compromise your client’s legal position and undermine your defense strategy. At Page Vault, we don't let that happen.

To learn more about our capabilities and how we can serve as an indispensable litigation resource for counsel and the brands they represent, contact Page Vault today.

Disclaimer: This content is provided for informational purposes only and does not constitute legal advice. Page Vault is not a law firm. Consult a licensed attorney for advice regarding your specific legal matter.