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On the surface, social media platforms have made using music incredibly simple. Search for a song, tap to add it to your video, and publish to your audience. For millions of personal users, this seamless integration represents one of social media's most engaging features. For brands and businesses, however, this same simplicity has become a legal trap that's costing companies millions in copyright infringement damages.
The fundamental disconnect? Platform music libraries and the licenses that power them were never designed to cover commercial use by brands.
When TikTok, Instagram, and YouTube negotiated music licenses with record labels and publishers, they created a framework that permits their users to incorporate music into personal content. These platform-wide licenses represent massive deals—Meta reportedly paid hundreds of millions to secure music rights for Facebook and Instagram. But buried in the terms of these agreements is a critical limitation: the licenses cover user-generated content for personal expression, not commercial advertising.
This distinction creates two parallel music ecosystems on every major platform. For personal accounts, vast libraries of popular music remain available. For commercial use, platforms offer drastically restricted alternatives. TikTok's Commercial Music Library and Meta's Sound Collection contain a fraction of the songs available for personal use, often excluding current hits and trending tracks that brands most want to leverage.
The problem escalates when brands either don't understand this divide or choose to ignore it, assuming that availability equals permission.
From a user experience perspective, platforms have created significant ambiguity around music licensing. When a business account holder searches for music on Instagram or TikTok, they often see the same interface as personal accounts, with songs appearing available even when they're not licensed for commercial use. Some tracks display as "greyed out" for business accounts, but users have discovered workarounds—including accessing "Original Sounds" uploaded by personal users that contain copyrighted music.
These Original Sounds represent a particularly dangerous loophole. When a personal user uploads content featuring a copyrighted song, that audio becomes available as an "Original Sound" that others can use. Platforms treat these as distinct from official recordings, allowing business accounts to access them even when the official version is restricted. Legally, however, using a copyrighted song through an Original Sound provides no protection—it's still the same copyrighted work requiring the same commercial license.
Further complicating matters, some brands have switched their accounts from "business" to "creator" status specifically to access broader music libraries. While this grants technical access, it doesn't grant legal rights. If the content promotes a brand or product, it constitutes commercial use regardless of account type.
Perhaps the most widespread misconception is that only paid advertising requires music licensing. In reality, commercial use encompasses far more than promoted posts or ad campaigns. If content promotes a product, service, event, or brand in any capacity, courts and rights holders consider it commercial use requiring proper licensing.
This definition captures:
Organic posts from brand accounts that showcase products or services, even without paid promotion
Behind-the-scenes content showing company culture, manufacturing processes, or "day in the life" videos from employees
Influencer partnerships where creators produce sponsored content mentioning or featuring brands
User-generated content that brands repost or amplify on their own channels
Event promotion for brand-related conferences, store openings, or community activities
The University of Southern California discovered this definition's breadth when Sony Music sued over promotional videos for its athletics program. Despite being an educational institution, USC's content promoting teams, celebrating victories, and driving ticket sales crossed into commercial territory, stripping away potential educational fair use defenses.
Even when brands understand they need commercial music licenses, they often miss a crucial detail: licenses are platform-specific. A song cleared for use in a TikTok commercial campaign cannot be downloaded and reposted to Instagram, YouTube, or Facebook without separate licensing for each platform.
This platform-by-platform requirement creates operational headaches for brands managing multi-channel campaigns. A marketing team might create engaging content for TikTok using that platform's commercial library, then instinctively repurpose that same video across other social channels. Each unauthorized repost potentially constitutes a separate copyright infringement.
The licenses platforms hold with music rightsholders specify exactly how, where, and under what terms music can be used. Those terms don't travel with the content when it moves to different platforms. A brand that wants to use the same song across TikTok, Instagram, and YouTube for a unified campaign needs to either:
Verify the song appears in each platform's commercial library and create separate native posts for each
License the song directly from the rightsholders for cross-platform commercial use
Use royalty-free music from third-party licensing services that grant broad commercial rights
Beyond the personal versus commercial divide, certain uses of music fall entirely outside platform licenses, even from commercial libraries. When brands edit platform content for use in external advertising, create compilations or highlight reels, or incorporate social media footage into websites, pitch decks, or other marketing materials, platform licenses become irrelevant.
DSW's lawsuit highlighted this issue. While some of the alleged infringements occurred in standard social media posts, Sony Music also argued that the retailer's systematic use of music across marketing campaigns required synchronization licenses—formal agreements that permit pairing specific music with visual content. These licenses, typically negotiated directly with music publishers and record labels, cost thousands to hundreds of thousands of dollars depending on the song's popularity, the scope of use, and the size of the advertising campaign.
When brands bypass this licensing process by treating social media as a "free" alternative to traditional advertising music budgets, they're building legal liability into every post.
Influencer marketing has created perhaps the most complex music licensing scenarios. When a brand pays an influencer to create content, who bears responsibility for music licensing? Courts have consistently answered: potentially everyone involved.
Warner Music's lawsuit against DSW alleged not just direct infringement from the shoe retailer's own accounts, but also contributory and vicarious infringement based on influencer content. The legal theory holds that if a brand encourages, facilitates, or benefits from infringement—even when an influencer technically uploads the content—the brand shares liability.
This creates a challenging dynamic. Influencers, operating from personal accounts, have access to full music libraries and may not understand commercial use restrictions when creating sponsored content. Brands may assume influencers handle licensing or that the influencer's platform access provides sufficient rights. Meanwhile, music rightsholders view the entire relationship as commercial use requiring proper licensing.
Sony Music's case against Marriott specifically cited 18 videos posted by influencers paid by the hotel chain, arguing that Marriott's sponsorship made it liable for the music those influencers used. The complaint detailed how Marriott collaborated with influencers, approved content, and financially benefited from engagement, establishing sufficient connection for liability.
Some brands have attempted to avoid licensing issues by using "production music"—instrumental tracks specifically created for licensing to media productions. However, as Johnson & Johnson learned, production music still requires proper commercial licensing.
Associated Production Music (APM), a joint venture between Sony Music Publishing and Universal Music Publishing, sued Johnson & Johnson for using 30 production music tracks across 79 social media posts without obtaining synchronization licenses. Even though production music is designed for licensing and lacks the recognition of popular songs, it remains copyrighted material requiring formal agreements for commercial use.
The Johnson & Johnson case underscores that there's no category of "background music" exempt from licensing requirements. Whether using chart-topping hits or instrumental production tracks, commercial use requires commercial licenses.
The lawsuits piling up against brands reveal an industry-wide reckoning. Music rightsholders have recognized that social media represents billions in annual marketing spend, and they're demanding compensation when brands use valuable copyrighted material without permission.
For companies accustomed to licensing music for television commercials—where fees and requirements are well-established—the social media landscape may seem murkier. But courts aren't accepting that ambiguity as an excuse. Crumbl Cookies' own 2024 caption—noting that "legal said we can't use any trending audios"—demonstrated that brands understand the restrictions, even if they don't always follow them.
The path forward requires abandoning assumptions that platform availability equals legal permission. Beyond the platform library, the real question isn't whether music is technically accessible, but whether the brand has the actual legal right to use it commercially—a question that, for most popular music on social media, has a clear answer: no.
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