1. The Music Is Copyrighted — Always
Music playing in the background is still copyrighted, and generally:
- You do not automatically have the right to include it in your video.
- If the music is clearly identifiable, that counts as using the copyrighted work.
This is true even in public places, because the copyright belongs to the composer/performer, not the location.
2. So Can You Use the Video?
It depends on three factors:
A. Is the music “incidental” or “unintentional”?
Some countries (and occasionally U.S. courts) recognize “incidental use,” meaning the music is:
- Not the focus of the video
- Not intentionally captured
- Very low in volume or clarity
- Not adding meaningful artistic value to the footage
If the music is faint and truly incidental, many platforms may allow it, and your risk is low.
But U.S. law does not explicitly carve out an “incidental capture exception,” so it’s not guaranteed safe.
B. Is the music loud and recognizable?
If the song is:
- Clear
- Loud
- Identifiable
- Playing for a long portion of the video
…then you’re using copyrighted material in a way that requires a sync license (permission from the rights holder).
YouTube, TikTok, Facebook, etc. will absolutely detect this, and:
- Block the video
- Mute the audio
- Or monetize it for the copyright owner
C. Are you monetizing or distributing the video commercially?
If you plan to:
- Sell the video
- Upload it to YouTube to monetize
- Use it in a commercial project
- Use it in a documentary or TV production
…then you typically need clearance. Even “background” music becomes an issue at that point.
Non-commercial use may be tolerated, but copyright still applies.
3. What About Live Music?
Live musicians performing copyrighted songs still create copyrighted content.
Capturing that performance is legally the same as using recorded music unless:
- They perform original, uncopyrighted music, or
- They give you permission, and
- They have the right to grant that permission (not always true for cover bands)
4. Workarounds You Can Use
Here are common practical solutions used in TV, documentary, and YouTube production:
• Replace the audio with copyright-free music
Use your own track or stock music and duck the background audio.
• Use noise reduction or EQ to reduce the music
If the song becomes unrecognizable, you’re generally safe.
• Keep the audio only if it’s short & incidental
A few seconds of indistinct sound rarely causes problems on platforms.
• Get a sync license
This is the only 100% legally safe method if the music is clear and important.
• Ask the venue or musicians
They may hold performance rights or be willing to provide permission.
In Plain English
- The music is copyrighted.
- You cannot freely keep it in your video if it’s clearly audible and recognizable.
- If it’s faint, incidental, unintelligible, or very short, it’s usually fine in practice, though technically still copyrighted.
- For commercial or monetized work, you should either remove it or license it.
