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H&M called out on social media for lifting Harvey Sutherland song without permission

Leading Swedish apparel brand H&M has yet again been caught up in social media controversy following an advertisement posted to the brand’s Instagram channel.  It was just last month that the brand was forced to deal with their first ‘face-palm’ moment of 2018, when the online listing of one of their children’s hoodies was criticised by many for being racially insensitive – leading to H&M’s brand ambassador, The Weeknd, severing all ties with the company.

Now, in the recent turn of events, the brand faces accusations of ‘stealing’ a song produced by Melbourne artist Harvey Sutherland, subsequently using it in one of their social media adverts without permission -contrary to Australian intellectual property laws.

Recently H&M posted their new advert via Instagram and within a short period, comments started flowing in questioning exactly which synth-funk song had been used in the second slide of the advert.  Swiftly making matters worse from the get-go, H&M jumped in claiming that it was actually an original work, commissioned by the company – and that the song had no name.

However, ardent synth-wave fans identified the song as Harvey Sutherland’s much appreciated track “Bamboo“, which had come out three years prior to the H&M video.  The song’s producer was also quick to spot the faux-pas, commenting on the post itself calling the brand out on the fact that they had credited neither him, nor his song.  H&M have since apologised and have removed the content featuring the music from their social media accounts.

H&M’s #SocialMediaFail

For commercial brands, the whole idea behind posting on social media is generally to both effectively engage with fans in real-time, and extend a positive image of the company to as many people as possible.  Brands typically look to reach out to their audiences on social media through entertaining and aesthetically pleasing images and videos; clearly what H&M’s mishandled Instagram post was aiming at.  However, in this case, rather than 24 million followers focusing on the subject matter of the advertisement (being blue jeans), the focus shifted to H&M’s unauthorised use of an Australian artist’s song.  In fact, the brand was criticised and the focus shifted to #PayHarvey.  This was clearly not the objective of the promotion – and overall the promotion was a #SocialMediaFail!

So what we could learn from the H&M #SocialMediaFail?

Before posting an advertisement on social media, it is important to check the advertisement does not infringe upon a third party’s rights.  Use of a song, words or image without appropriate permissions could expose your business to a legal claim for damages or an action to stop your use of the infringing material.  On top of the legal ramifications that your company could potentially face, such conduct could result in a #PR disaster.  Multi-national brands like H&M must be extremely careful with regard to circumstances surrounding intellectual property and artists’ rights, as instances like this can considerably tarnish the reputation of a brand, often in just a matter of hours.  In respect of H&M, this is the second highly-publicised social media fiasco that they’ve been forced to deal with in the past two months – which undoubtedly would have their legal and PR teams’ hearts racing.

Also, before responding to a #SocialMediaCrisis you need to make sure you have all the relevant facts.  A quick and incorrect response would simply add fuel to the fire, as was the case with H&M’s response.

Due to the wide reach of social media, your local campaign may cross borders and may attract unwanted global attention.  Hence if you’re considering launching a new marketing campaign on your social media channel and want to prevent a social media fail like H&M’s, or simply need more information on social media strategy, risk management for your business or intellectual property laws, please don’t hesitate to get in contact with Coleman Greig’s Brand Protection team.

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