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When a social media post goes viral, brands celebrate. Millions of views, thousands of shares, unprecedented engagement—the metrics that prove a campaign succeeded. But for an increasing number of companies, viral success has come with an unexpected invoice: copyright infringement lawsuits demanding hundreds of thousands or even millions of dollars in damages for unlicensed music used in that content.
The influencer marketing boom has created a perfect storm for music copyright violations, where the very strategies that drive engagement also drive legal liability.
Influencer marketing operates on a compelling logic: instead of brands creating promotional content themselves, they partner with trusted creators who produce authentic content for their engaged audiences. This approach often feels more organic than traditional advertising, and brands have embraced influencer partnerships as central to their marketing strategies.
The assumption underlying many of these partnerships is that influencers, operating from personal creator accounts with access to full platform music libraries, can use whatever music they want—even in sponsored content. This assumption is legally incorrect and financially dangerous.
When an influencer creates content promoting a brand, product, or service as part of a paid partnership, sponsorship, or ambassador program, that content constitutes commercial use regardless of account type. The personal account privileges that allow the influencer to access popular music don't extend to commercial promotional content. Yet influencers routinely incorporate trending songs into branded content, and brands routinely amplify that content, creating shared liability for copyright infringement.
Courts have established multiple theories for holding brands liable for music infringement in influencer content, even when brands don't directly upload the videos:
Direct infringement occurs when brands repost, share, or amplify influencer content containing unlicensed music on their own channels. By reproducing and distributing the copyrighted work, brands directly infringe regardless of who created the original content.
Contributory infringement applies when brands encourage, facilitate, or materially contribute to infringement by others. If a brand hires influencers, provides creative direction, and pays for content that includes unlicensed music, courts may find the brand contributed to the infringement even if influencers technically posted it.
Vicarious infringement occurs when brands have the right and ability to supervise or control infringing activity and directly benefit financially from it. When brands review and approve influencer content, include music use in creative briefs, or structure partnerships that incentivize viral content (which often relies on trending music), they establish sufficient control for vicarious liability.
Warner Music Group's lawsuit against DSW deployed all three theories. The complaint alleged DSW directly infringed by posting music to its own accounts, contributorily infringed by "encouraging, collaborating with, and paying influencers to create videos featuring its products and the copyrighted music," and vicariously infringed because DSW "benefited financially from the infringing influencer content and had the ability to control or remove the content."
The lawsuits against Bang Energy drink provide a detailed blueprint for how influencer partnerships create copyright liability. Universal Music Group, Sony Music Entertainment, and Warner Music Group all sued Bang for music infringement involving both direct posts from Bang's accounts and content from influencers Bang partnered with.
In court filings, Bang argued that it shouldn't be liable for influencer content because influencers chose the music themselves and Bang lacked legal rights to control what influencers posted. Courts rejected these arguments. The legal framework focused on the nature of Bang's relationships with influencers: Bang paid influencers, provided products for promotion, and created formal agreements governing the partnerships.
While courts split on whether Bang was liable for contributory infringement—requiring proof that Bang knew about the infringement and materially contributed to it—they consistently found vicarious liability. The reasoning: Bang directly benefited financially from influencer content driving product awareness and sales, and Bang's agreements with influencers gave it sufficient ability to supervise the content created under those partnerships.
The result was partial summary judgment against Bang in Sony Music's case, establishing infringement liability before the case even reached trial. Bang eventually faced three separate lawsuits from the three major music companies, each seeking damages for hundreds of songs allegedly used without authorization.
Influencers face their own challenges navigating music licensing. From their perspective, platform interfaces make incorporating music effortless. TikTok and Instagram actively promote music features, suggesting trending songs and making audio attachment as simple as selecting from a menu. Platform algorithms reward content using popular music with greater reach and engagement.
For personal content—travel vlogs, comedy sketches, lifestyle posts—this music use is generally covered by platform licenses. But when influencers shift to creating sponsored content, the legal framework changes even if the platform interface doesn't. Nothing in TikTok or Instagram's user experience clearly delineates when a creator crosses from personal expression into commercial use requiring different licenses.
Further complicating matters, influencers often don't recognize sponsored content as "commercial" in the legal sense. They're not selling products directly; they're creating authentic content that happens to feature brands they genuinely like. This conceptual gap between creators' self-perception and legal reality leaves influencers—and the brands they partner with—exposed to infringement claims.
Savvy brands have attempted to address music licensing through influencer contracts, including provisions that require influencers to obtain necessary rights for content elements including music. However, these contractual provisions often provide false security.
First, requiring influencers to secure music rights doesn't actually secure those rights unless influencers follow through—and many don't understand what compliance requires. An influencer might genuinely believe that using music from TikTok's library means they've "secured rights" when they haven't obtained commercial licenses.
Second, contractual provisions shifting responsibility to influencers don't shield brands from liability to music rightsholders. Copyright infringement is a "strict liability" claim, meaning if infringement occurred, liable parties must pay damages regardless of intent or contractual obligations with other parties. Brands might later seek indemnification from influencers who breached contracts, but that's a separate issue from the immediate infringement liability.
Third, even robust contracts don't eliminate contributory or vicarious liability if brands actively participate in creating infringing content. If a brand's creative brief suggests using trending music, if brand representatives review and approve content containing unlicensed music, or if brands structure compensation to reward high engagement (implicitly encouraging use of popular music that drives views), contractual provisions won't prevent liability.
One of influencer marketing's key advantages is that successful content doesn't stay confined to influencer accounts. Brands share, repost, and amplify influencer content across their own channels to extend reach. This amplification strategy, however, multiplies copyright infringement exposure.
When Marriott faced Sony Music's lawsuit, the complaint specifically distinguished between infringement in content posted to Marriott's own accounts and infringement in content posted by influencers Marriott had paid. The legal theories differed—direct infringement versus contributory/vicarious infringement—but both created liability. If Marriott had reposted influencer content to its own channels, that would have added additional direct infringement claims.
Each repost, share, or amplification of content containing unlicensed music potentially constitutes a separate act of infringement. A single influencer video might spawn liability on the influencer's account, the brand's Instagram account, the brand's TikTok account, the brand's Facebook page, and potentially other channels where the brand distributes the content.
Beyond paid influencer partnerships, brands face music copyright issues with organic user-generated content (UGC). When customers or fans create content featuring brands and use popular music, brands often want to celebrate and share that content. However, reposting UGC containing copyrighted music transfers liability to the brand.
The original user's post might be covered by platform licenses for personal use. But when a brand account reposts that same content for commercial purposes—leveraging it for brand promotion and awareness—the commercial use requires separate licensing that neither the original user nor the brand typically obtains.
This reality creates a challenging constraint on UGC strategies that many brands rely on for authentic social proof and community engagement. The most engaging user content often includes trending music, but that's precisely the content brands cannot safely amplify.
The influencer marketing music crisis requires systematic changes to how brands structure partnerships and manage content:
Education and training must ensure influencers understand that sponsored content requires different music treatment than personal posts. Brands should provide clear guidelines and approved music sources.
Commercial music libraries should be the default for any sponsored content. Brands should direct influencers exclusively to platform commercial music libraries or provide access to third-party licensing services with commercial rights.
Pre-approval processes need to include music review. Before compensating influencers or amplifying content, brands should verify that any music used is properly licensed for commercial use.
Indemnification clauses in influencer contracts should be paired with practical compliance mechanisms, not relied upon as primary protection.
Monitoring systems can identify music in published content and flag potential infringement before it accumulates into lawsuit-worthy scale.
The hidden cost of viral success is that attention attracts scrutiny. Music rightsholders actively monitor high-performing content, searching for unauthorized use of valuable copyrighted works. As influencer marketing continues growing, the days of treating music licensing as someone else's problem—or no one's problem—are definitively over. The lawsuits stacking up across industries prove that viral success built on unlicensed music is success with an invoice attached.
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