How Expensive 14 Seconds Can Be – Music on Social Media, Licence Analogy and a Calculation That Didn’t Work Out

14 seconds of music, 383 days online, a claim of EUR 95,750: a TikTok advertising clip for a weight-loss app, featuring the Eurodance classic “Freed from Desire” by Gala, became the subject of a costly legal dispute. In its judgment of 9 September 2026, the Regional Court of Frankfurt am Main (Landgericht Frankfurt am Main) dismissed the claim for payment in its entirety – even though it expressly affirmed the copyright infringement and the defendant’s fault. The claim did not fail due to a lack of infringement, but because of an insufficient basis for calculating the licence damages.

Available in the Library – But not cleared for commercial use

TikTok provides its users with a music library from which they can select soundtracks for their clips. What many users do not realise is that, under TikTok’s terms and conditions, this general music library is expressly restricted to personal, non-commercial purposes. A separate “Commercial Music Library” is available for commercial content – including advertising, branded posts and the promotion of a company’s own products and services – containing tracks licensed for such uses. “Freed from Desire” was not included in that library.

The defendant, operator of a weight-loss and nutrition app offered internationally, nevertheless used the song as the soundtrack to a TikTok advertising clip. The court found that this constituted a copyright infringement and also held that the defendant had acted negligently. Anyone publishing commercial content on TikTok must familiarise themselves with the platform’s licensing terms and must not assume that a track being technically available also means that it can legally be used without restriction.

An infringement does not come with an automatic price tag

The claimant, a rights agency, had a clear idea of the value of its claim: EUR 250 per day of use, multiplied by 383 days of use, resulting in EUR 95,750. The calculation was based on Section 97(2) of the German Copyright Act (Urheberrechtsgesetz – UrhG), which allows damages to be calculated on the basis of a hypothetical licence fee (the so-called licence analogy). Under this approach, the infringer must pay the amount that reasonable parties would have agreed upon as remuneration for the specific use.

However, the Regional Court of Frankfurt am Main considered itself unable to estimate the damages on that basis under Section 287 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO). This was not because the work’s popularity, the platform’s reach or the duration of use are inherently unsuitable criteria – the court expressly emphasised that they are not. Rather, the claimant simply failed to provide a suitable starting point for a reliable estimate. It submitted neither contracts demonstrating an established licensing practice of its own nor appropriate comparable licence fees. Instead, it argued that licences were negotiated individually on a case-by-case basis.

The court found this insufficient. The absence of comparable figures does not entitle a rights holder to determine licence-based damages unilaterally and without a reliable evidential basis.

Why three days don´t simply turn into 383

The claimant also failed to persuade the court with its calculation based on daily rates. The underlying argument was that a marketing manager at a reputable company would have accepted a daily rate of EUR 250 for using the song for three days. That daily rate could then, according to the claimant, be extrapolated to cover the entire period of use.

The court disagreed. A daily rate assumed for a three-day use cannot simply be extrapolated to a period of more than one year. From the court’s perspective, the decisive question was what remuneration reasonable parties would have agreed upon for the entire period of actual use. Even if remuneration were calculated according to the duration of use, a substantial discount would have been expected for a period exceeding one year. The claimant’s own expert report also supported the use of a flat fee.

Not every branded post has a “Signature Sound”

The claimant further argued that the song had been used as the defendant’s “signature sound” – a musical calling card for the brand – which would justify a higher licence fee. The court examined the video itself but could not identify any such function.

The clip was just one of many videos on the defendant’s channel. There was no indication that it was a central element of the brand’s communications, was being actively promoted on a significant scale or had been integrated into the app itself. The court acknowledged that there might be a thematic connection between “Freed from Desire” and a weight-loss app. However, that connection was not self-evident, particularly since the video also featured images of sweets.

Not every song used in a branded social media post thereby becomes the brand’s musical identity.

No “All-Clear” – But no blank cheque either

The judgment of the Regional Court of Frankfurt am Main (judgment of 9 September 2026 – Case No. 2-06 O 424/25, GRUR-RS 2026, 22965) sends two messages.

For companies active on TikTok, the message is clear: the technical availability of a song in the general music library does not constitute a licence for commercial content. Companies producing advertising clips must check whether the intended use is covered by the Commercial Music Library or separately obtain the necessary rights to both the musical composition and the sound recording.

For rights holders, the message is equally important: anyone claiming damages must be able to substantiate the amount claimed. An established licensing practice of their own is not strictly necessary. Suitable comparable licence fees and other reliable circumstances of the individual case may also provide a basis for an estimate.

The licence analogy requires an objective licence value – something the court cannot estimate out of thin air if the claimant itself provides no reliable points of reference.

Fourteen seconds of music can be expensive. But the amount must be capable of being justified in a comprehensible and substantiated manner.