When creating an adult video, bringing your vision to life often means assembling just the right ingredients — including the right music. However, adding music to adult content can raise complex legal and ethical issues. In this article, we will explore the relevant legal frameworks governing music use, and provide insights into the challenges and risks adult content creators face when making decisions about music.
Copyright Infringement
Copyright enforcement organizations use sophisticated technology to identify unauthorized use of musical elements in any content published online.
The most immediate concern to be aware of is violating copyright. Using music without permission in adult videos, livestreams or promotional materials can lead to significant legal consequences.
Copyright law grants music owners — typically songwriters, composers or record labels — exclusive rights to control how their work is used, reproduced and distributed. Unauthorized use of music, even in short clips or background tracks, constitutes infringement unless an exception applies. We will discuss those exceptions shortly.
Copyright holders actively monitor for unauthorized use. In the case of adult content distributed online or through subscription platforms, infringement can result in takedown notices under the Digital Millennium Copyright Act (DMCA), lawsuits or demands for licensing fees. For example, a producer using a popular song in a video without a license could face penalties — especially if the content generates revenue, as this strengthens the copyright holder’s claim for damages and weakens the producer’s potential defenses.
Even music that plays on a radio, television or streaming service in the background of a livestream can generate significant legal ramifications. Copyright enforcement organizations use sophisticated technology to identify unauthorized use of musical elements in any content published online, and often pursue claims regardless of the creator’s or publisher’s innocent intentions. Statutory damages can range up to $30,000 per infringement, or up to $150,000 per infringement if the infringement is deemed willful rather than inadvertent, along with liability for the copyright holder’s attorneys fees.
To avoid infringement, creators and producers must obtain proper licenses to use any music incorporated into their adult content. Licenses can take various forms, such as synchronization licenses for combining music with visuals, or performance licenses for use in livestreamed content. Unfortunately, these licenses are often costly and challenging to secure for adult content, because many music rights holders refuse to associate their work with the industry due to reputational concerns. Accordingly, borderline use of music by a mainstream social media influencer may be overlooked, while infringement by an adult content creator might more quickly result in a claim.
‘Fair Use’ Defenses
The first of the exceptions mentioned above is fair use, a legal doctrine in U.S. copyright law that allows limited use of songs and other copyright-protected works without permission under specific conditions. Courts evaluate fair use based on four factors:
- Purpose and character of the use. Transformative uses — those that add new meaning or expression — are more likely to qualify as fair use. For instance, using music in a way that critiques or parodies the original work might strengthen a fair use claim. However, purely commercial use, such as background music to enhance a scene, is unlikely to qualify.
- Nature of the copyright-protected work. Because songs and musical compositions are highly creative works, they receive stronger copyright protection than factual works like news articles. Creators and producers are therefore inherently at a disadvantage if they assert a fair use defense when using music, because this factor will almost certainly favor copyright holders.
- Amount and substantiality. Using a small portion of a song may support a fair use claim, but if the portion is the “heart” of the work — e.g., the chorus, a recognizable instrumental version or a notable guitar solo — this factor weighs against fair use.
- Effect on the market. If the use of music in adult content reduces the song’s market value or competes with the original, this undermines a fair use defense. Given the commercial nature of most adult content, this factor often favors copyright holders.
Courts have rarely addressed fair use of music in adult content specifically. However, cases in other forms of media suggest that fair use is a narrow defense, with courts holding that even transformative uses must carefully balance the factors listed above. If you plan to incorporate music into your content, consult legal experts to evaluate your chances of prevailing with this often-risky defense.
De Minimis Use
The de minimis doctrine allows the use of insignificant portions of songs and other copyright-protected works without permission, as such use is deemed too trivial to warrant legal action. In music, de minimis use might apply to brief, incidental background sounds, such as a few seconds of a song playing faintly in a scene. However, courts have been skeptical of de minimis claims for music, particularly in commercial contexts.
To evaluate this defense, courts have looked at whether enough of the song has been used that it could “sensibly diminish” the value of the original, and whether the song has been appropriated to a substantial and injurious extent. In adult videos, music is often intentionally included to set a mood, so claiming de minimis use is challenging unless the music is genuinely incidental and unrecognizable. For example, a song playing briefly through the radio of a car passing by in the background of a scene might qualify as de minimis, but a track used prominently throughout a video almost certainly would not.
Producers and performers should exercise caution when claiming the de minimis use defense, as courts prioritize the economic impact on copyright holders over the brevity of use in commercial works.
Music Publishers and Performer Rights Organizations
Music publishers typically own the right to license songs to third parties for use in both live settings (including in-person venues and live streams online) and recorded settings (including physical CDs or vinyl records and recorded content online).
Music publishers often contract with performer rights organizations (PROs) such as ASCAP, BMI and SESAC to collect fees from businesses for the right to publicly perform their songs. Those businesses might be traditional venues like bars and restaurants, or online venues like streaming platforms. PROs then distribute royalties back to the publishers, composers and songwriters.
Music publishers and PROs ensure compliance with copyright law by monitoring online platforms for unlicensed use, issuing DMCA takedowns and demand letters, and imposing fines for noncompliance. To avoid costly disputes, adult creators and producers should engage proactively with publishers and PROs to secure the necessary licenses. Creators and producers seeking to use popular music in live content must typically secure a performance license from the relevant PRO, whereas use of popular music in recorded content typically requires a synchronization license from the music publisher.
Some music publishers and PROs offer blanket licenses to their entire catalog of music for a flat fee — but these licenses are rarely offered to producers of adult content or platforms that allow adult content. As previously noted, rights holders are sometimes reluctant to license popular music for use in adult content due to moral or branding concerns.
Practical Considerations for Adult Content Creators
Navigating the complexities of music use requires the following key steps:
- Use only licensed music. For popular music, content creators and producers will need to obtain licenses from the music publisher or PRO. Alternatively, content creators and producers may seek a license directly from smaller, independent artists who are more open to licensing their music for use in adult content
- Consider royalty-free alternatives. Hiring composers to create custom tracks eliminates licensing issues and allows for branding consistency. This is often the safest route for creators and publishers desiring to add music to their content. When hiring composers, it is essential to have an adequate copyright assignment or work-for-hire agreement in place.
- Consult legal experts. Copyright law is nuanced, and legal advice can help assess fair use or de minimis claims in advance.
- Monitor platform policies. Adult content creator platforms often have strict policies on the unlicensed use of music and other copyright-protected works, and violations can lead to content removal or account bans. Understand the restrictions before adding music to your content.
Using music in adult content requires careful consideration of copyright infringement risks, fair use limitations, de minimis use constraints and the role of music publishers and PROs. While licensing music legally or hiring a composer are the safest approaches, the adult industry faces unique challenges due to its commercial nature and potential reputational concerns for music rights holders. By understanding these legal frameworks and exploring alternatives like royalty-free music, content creators can minimize risks while enhancing their productions.
Lawrence G. Walters heads up Walters Law Group, which has represented the adult entertainment industry for over 35 years. Nothing in this article is intended as legal advice. Mr. Walters can be contacted through the firm’s website, www.firstamendment.com, or on social media @walterslawgroup.
