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Social media influencers face a growing wave of copyright infringement lawsuits from major music publishers and record labels for unauthorized use of copyrighted music in their posts. When sued, these influencers and their attorneys frequently argue that their use of music was authorized because they posted from “personal” or “creator” accounts rather than “business” accounts, and therefore their posts were non-commercial. They point to social media platform terms of service that permit music from platform libraries for non-commercial use only.
This defense fundamentally misunderstands both copyright law and the nature of influencer activity. An influencer who maintains a right of publicity, commercializes their identity, and monetizes their social media presence cannot selectively characterize individual posts as “personal” to avoid liability for copyright infringement. Every post by such individuals serves commercial purposes—building their brand, maintaining audience engagement, and enhancing the commercial value of their identity.
This article argues that influencers with established commercial value in their name and likeness should be deemed to use music for commercial purposes in all their social media posts, regardless of how they subjectively characterize those posts. This approach would eliminate the current inconsistency where influencers profit from commercial exploitation of their identity while claiming personal use to avoid paying for synchronization licenses required for commercial music use.
Social media platforms have established clear distinctions between music use for personal versus commercial purposes in their terms of service and music guidelines.
TikTok’s Commercial Music Library Policy: TikTok explicitly states that “when you post content that promotes a brand, product, or service, we recommend that you only use music from our Commercial Music Library (CML), as it’s pre-cleared for commercial use” (TikTok Commercial Music Policy). TikTok makes clear that “the licenses we hold for music outside of the CML don’t cover the commercial use of music in content”. When users post commercial content, they must “agree to our Music Usage Confirmation when the content disclosure setting is turned on,” which “confirms that there’s no copyright-protected music in the post, or that you’ve obtained and paid for all necessary licenses to use the music” (TikTok Commercial Music Library).
Instagram and Facebook (Meta) Policies: Instagram’s terms state that “the music available in our library is intended for personal, non-commercial use” (Instagram Music Library, Instagram Music Library Rules, Facebook Music Rules, Instagram Video Music License). Meta has negotiated licensing agreements with music publishers and record labels, but these agreements “do not cover commercial use”. Business accounts have access only to the Meta Sound Collection—a limited library of royalty-free music for commercial use—while personal and creator accounts can access a broader library of popular music that is licensed only for non-commercial purposes (Instagram Music for Brands, Facebook Music Licensing).
Meta’s policies explicitly state that “if you’re using Instagram for business or promotional purposes, be cautious when using popular music” because “Instagram’s licensing agreements for popular music often do not cover commercial use, which could lead to copyright claims”. Facebook’s guidance makes clear that “the licensing agreements that Meta holds for popular music generally do not cover commercial use,” meaning “if you are creating a Story to advertise or promote a product, service, or your brand, you cannot use a popular, copyrighted song from the main music library”.
User Responsibility: Critically, all platforms state that users are ultimately responsible for ensuring they have proper authorization to use music (Using Copyrighted Music in Business, Music in Social Posts). As one analysis notes, “Meta’s stance is clear: users are accountable for their content usage, despite the platform making it incredibly simple to misuse it”.
The platform licenses from music publishers and record labels cover only personal, non-commercial uses by individual users. These licenses explicitly do not authorize:
Multiple sources confirm that “when it comes to adding music to social media posts as a brand, every upload must be licensed for commercial use, or the brand could be liable for infringement” (Music Copyright for Brands). The distinction is clear: “commercial music you see inside the Reels or Stories editor comes with restrictions. You can use it directly in those tools, but you don’t get a license to republish that track outside of Meta’s platform”.
A fundamental principle of copyright law is that civil copyright infringement is a strict liability offense (Is Copyright Infringement Strict Liability - UC Berkeley, Copyright Strict Liability Analysis, Criminal vs Civil Copyright). This means that “intent or knowledge is not necessary for a finding of liability”. As courts have consistently held, “regardless of whether the infringing party was aware of their violation or had no intent to infringe, they can be held liable if their actions constituted violation”.
The law is unambiguous: “criminal penalties, in general, require that the offender knew that he or she was committing a crime, while civil copyright infringement is a strict liability offense, and offenders can be ‘innocent’ (of intent to infringe), as well as an ‘ordinary’ infringer or a ‘willful’ infringer”. Copyright infringement requires “no scienter, intent, knowledge negligence, or similar culpable mental state”.
This strict liability standard applies to the infringement inquiry itself—whether the defendant used the copyrighted work without authorization. Intent becomes relevant only for calculating damages (whether to award enhanced statutory damages for willful infringement or reduced damages for innocent infringement), not for determining liability.
To establish copyright infringement, the plaintiff must prove three elements:
Importantly, the plaintiff need not prove the defendant’s state of mind, knowledge, or intent to infringe. The Copyright Act “says very little about the plaintiff’s burden of proof in establishing liability in an infringement case” with respect to mental state, because mental state is not an element of civil infringement (Burdens of Proof in Copyright).
The existence of a license or authorization is an affirmative defense to copyright infringement, meaning the defendant bears the burden of proving they had permission to use the copyrighted work (Ninth Circuit Jury Instructions - Express License, Ninth Circuit - Implied License). Federal Rule of Civil Procedure 8(c) explicitly lists “license” as an affirmative defense.
The Ninth Circuit Model Jury Instructions make this clear: “The defendant contends that [he] [she] is not liable for copyright infringement because the plaintiff granted [him] [her] an express license to [use] the plaintiff’s copyrighted work”. The instruction continues: “To show the existence of an express license, the defendant has the burden of proving that [he] [she] received an express license to [use] the plaintiff’s copyrighted work”.
Courts consistently hold that “the existence of a license creates an affirmative defense to a claim of copyright infringement” and that “the defendant bears the burden of proof as to the scope and existence of an implied license”. This burden allocation is critical: once the plaintiff proves unauthorized use of their copyrighted work, the defendant must prove they had authorization or a license.
Even in cases where actual knowledge is not required for liability, copyright law recognizes the willful blindness doctrine
as a basis for enhanced damages. Under this doctrine, “a defendant is willfully blind if it (1) ‘subjectively believe[s] that there is a high probability that a fact exists’ and (2) ‘take[s] deliberate action to avoid learning of that fact’” (Lenz v. Universal - Supreme Court Brief, Willful Blindness Standard).
The Supreme Court has explained that willful blindness is legally equivalent to actual knowledge because “a defendant ‘who takes deliberate actions to avoid confirming a high probability of wrongdoing’ is as culpable as one who acts with actual knowledge”. A party who “can almost be said to have actually known the critical facts” cannot claim innocence.
For influencers who use music from platform libraries while operating commercial accounts, willful blindness applies when they: - Know their account serves commercial purposes - Are aware that platform licenses exclude commercial use - Take deliberate action to avoid confirming whether they need separate licenses - Characterize obviously commercial activity as “personal” to claim authorization under platform licenses
Recent high-profile copyright infringement cases demonstrate that music publishers are aggressively enforcing their rights against commercial users who employ unlicensed music in social media posts.
Universal Music Group sued Bang Energy and its CEO Jack Owoc for copyright infringement based on approximately 140 TikTok advertisements that used UMG’s music without authorization, including songs by Mariah Carey, Justin Bieber, Dua Lipa, and Cardi B (Reuters - Bang Energy Case, Bang Energy Liable, UMG Ruling Analysis, Loeb & Loeb Analysis).
Bang argued it had “a reasonable belief it possessed a license from TikTok” for all users. The court rejected this defense, holding that while “TikTok has agreements with various artists, record companies, and music publishers that allows for the legal use of music contained in their music library,” these licenses explicitly exclude commercial use. Business accounts “are not allowed to use the same licensed music as regular TikTok users”.
The court granted summary judgment to UMG on direct infringement, finding that “UMG established its ownership of the copyrighted tracks and showed that Bang’s videos utilized them without consent”. The judge held that “Bang’s claim of believing it had a license pertains to the extent of damages owed, rather than to the question of infringement itself”. In other words, the claimed belief in authorization is irrelevant to liability—only to damages.
The court explained: “There are no licenses from Plaintiffs to Defendants to commercially use the recordings. Nor are there licenses from Plaintiffs to any of the platforms that would permit end users of any of the platforms to use the recordings for commercial purposes”.
Sony Music filed a parallel lawsuit against Bang Energy for using at least 132 copyrighted sound recordings in approximately 286 videos across TikTok, Instagram, YouTube, Facebook, and Triller without authorization (Sony Bang Energy Victory, Malloy Law - Sony Case, Reuters - Sony Ruling, Pryor Cashman, Billboard - Sony Case). Sony accused Bang of “well aware that [its] conduct constitutes copyright infringement,” referring to Bang as “a sophisticated entity” conducting an “aggressive and conspicuous social media campaign”.
The court granted Sony partial summary judgment, confirming Bang’s liability for direct copyright infringement. The decision noted that Bang “have directly posted at least 286 videos that include the recordings at issue” and that “there are no licenses from Plaintiffs to Defendants to commercially use the recordings”.
On May 1, 2025, Warner Music Group sued DSW Designer Shoe Warehouse and its parent company Designer Brands Inc. for “misappropriating over two hundred” of Warner’s copyrighted recordings and compositions in TikTok and Instagram posts (Music Connection - DSW Case, Kohl Cook Analysis, JD Supra - DSW, Music Business Worldwide, Dispatch News). Warner seeks statutory damages up to $150,000 per infringed work, with potential total damages exceeding $30 million.
The complaint alleges DSW used tracks by Ed Sheeran, The Weeknd, Cardi B, Lizzo, Madonna, and Missy Elliot to “attract attention to the DSW videos, drive sales to DSW, and build DSW’s brand awareness and profile”. Warner emphasized that “during its 55-year history, DSW has repeatedly licensed music for promoting its brand and products in television commercials” and has “licensed music for its commercials from WMG in the past,” demonstrating that DSW has “extensive experience with music licensing”.
Warner’s lawsuit explicitly addresses influencer partnerships: “DSW and its social media influencers have incorporated many of Plaintiffs’ most valuable musical works into marketing and advertising videos for DSW’s products”. The complaint argues that even though DSW “is a sophisticated party that has extensive experience with music licensing,” the company “and its influencer partners have failed to seek permission or pay for the use of the sound recordings and musical compositions”.
In the Bang Energy cases, courts addressed whether brands could be liable for infringement by influencers they hired. In UMG Recordings, Inc. v. Vital Pharmaceuticals, Inc., the court held that Bang exercised “the requisite control over the social media influencers with whom it contracted so as to be potentially liable for vicarious infringement based on videos posted on the influencers’ TikTok accounts” (Arnold & Porter - Vicarious Liability).
The decision noted that Bang “paid influencers to market Bang’s products in videos, and obtained ownership of the videos the influencers created”. Bang’s social media team “verified that the videos complied with Bang’s Social Media Guidelines” before posting. This level of control exposed Bang to liability for the influencers’ infringement.
However, the court distinguished between Bang’s own posts and influencer posts: “the court found the influencers they paid to make content for their own pages did not infringe on the label’s copyrights as they were covered by the user-generated content licenses”. This distinction is critical but limited—it applies only when influencers post from truly personal accounts without commercial purpose.
These cases establish several critical principles:
An influencer who has established commercial value in their name and likeness operates a commercial enterprise through their social media presence. Every post serves the commercial purpose of maintaining and enhancing that value.
As German courts have recognized, “influencers who sell goods, offer services or market their own image by using a social medium such as Instagram operate a company so that the posts constitute a commercial act” (German Federal Court - Influencers, Raue - German Ruling, Noerr - Landmark Rulings). American courts should adopt similar reasoning.
Influencers with commercial accounts:
Monetize their entire presence: They earn income through sponsorships, partnerships, affiliate marketing, brand deals, and platform revenue-sharing programs (Social Media Celebrities, Influencer Law, Instagram Partnership Ads, Instagram Branded Content)
Use follower count as commercial capital: Their audience size directly determines their earning potential and negotiating power with brands (Influencing IP, TikTok Influencers Study, LA Influencer Disputes)
Build and maintain brand value with every post: Each piece of content—whether explicitly sponsored or not—contributes to their commercial brand identity
Generate engagement metrics that drive revenue: Likes, comments, shares, and views signal to algorithms and brands that the influencer delivers commercial value
Cannot separate “personal” from “commercial” posts: When an individual’s business is their identity, all public expressions serve the commercial enterprise
Social media platforms treat influencer content as inherently commercial through their policies and economics:
Different account types: Platforms offer Business and Creator accounts specifically designed for commercial activity, with access to partnership tools, analytics, and monetization features (Paid Partnership Labels, Instagram Partnership Ads, Branded Content Requirements, Instagram Creator Guide, Meta Branded Content, Instagram Branded Content Policy)
Branded content tools: Instagram and Facebook require disclosure of commercial relationships through paid partnership labels
Commercial music libraries: Platforms provide separate, limited music libraries for commercial use precisely because they recognize that business and creator accounts operate commercially (TikTok Commercial Library, Instagram Music Library)
Algorithm distribution: Platforms algorithmically promote content based on engagement metrics that directly translate to commercial value (TikTok New Rules, TikTok Content Library, Instagram Penalizes Brands)
Partnership ad revenue: Platforms enable brands to boost influencer content as paid advertisements, sharing revenue with the influencer (Partnership Ads)
Instagram explicitly restricts branded content tools to Business and Creator accounts—not personal accounts—because the platform recognizes these account types exist for commercial purposes (Instagram Eligibility, Hollyland - Instagram Tools). TikTok requires users posting commercial content to toggle the “Disclose commercial content” setting and confirms “you’ve obtained and paid for all necessary licenses to use the music”.
An influencer cannot coherently claim that some posts are “commercial” (when collecting sponsorship fees, negotiating brand deals, or claiming publicity rights protections) while other posts are “personal” (when facing copyright infringement liability for unlicensed music use).
This selective characterization creates logical and legal contradictions:
Publicity rights inconsistency: If an influencer claims publicity rights to prevent unauthorized commercial use of their identity, they implicitly acknowledge their identity has commercial value (Right of Publicity - Venable, Yale - First Amendment, Right of Publicity Encyclopedia, Rothman - Inalienability, Penn Law - Inalienable Right). They cannot then disclaim the commercial character of their own uses of that identity.
FTC regulation inconsistency: The Federal Trade Commission regulates influencer posts as commercial advertising requiring disclosure of material connections (FTC Disclosures, Instagram Compliance, FTC Guidelines). If posts are commercial for FTC purposes, they are commercial for copyright purposes.
Platform policy inconsistency: Platforms require influencers to use branded content labels and disclose paid partnerships. These requirements exist because platforms recognize the commercial nature of influencer activity.
Economic reality inconsistency: Brands pay influencers six-figure fees for single Instagram posts precisely because those posts generate commercial value (Ariana Grande Lawsuit, Grande Publicity Value, Grande vs Forever 21). The commercial purpose is undeniable.
Licensing history inconsistency: Major brands like DSW have historically licensed music for traditional advertising. When they shift to social media marketing using influencers, the commercial purpose remains—only the medium changes.
When an influencer uses copyrighted music in a video post, they are creating a “synchronization” of the music with visual content. Synchronization rights are one of the exclusive rights held by copyright owners (Sync Copyright Infringement, Social Media Sync, Reuters - Music Risks).
Platform licenses do not grant sync rights for commercial use. As legal analysis confirms, “the music available in our library is intended for personal, non-commercial use”. For commercial synchronizations, users must obtain licenses directly from music publishers and record labels.
The distinction matters because sync licensing for commercial use commands significant fees. Music publishers derive substantial revenue from sync licenses for advertising and promotional content. When influencers use music without obtaining these licenses, they deprive copyright owners of compensation while gaining commercial advantage from the music’s appeal.
As Warner Music’s lawsuit against DSW emphasized, companies use popular music because “popular music is the best way to capture the attention of its targeted audience”. The same applies to influencers—they use trending songs to boost engagement, attract views, and enhance their commercial profiles.
Even if an influencer claims ignorance of licensing requirements, the willful blindness doctrine can establish that they should have known their use required authorization.
Willful blindness requires proving the defendant: 1. Subjectively believed there was a high probability that authorization was required 2. Took deliberate action to avoid confirming that fact
For influencers using music in commercial posts, both elements are readily established.
Influencers have multiple sources of knowledge that their commercial activity requires music licenses:
Platform terms explicitly state commercial use is not covered: TikTok, Instagram, and Facebook all clearly communicate that their music library licenses exclude commercial use
Platform provides separate commercial music libraries: The existence of Commercial Music Libraries signals that commercial use requires different authorization
Disclosure requirements indicate commercial nature: Platforms require influencers to label branded content and disclose commercial relationships
Account type signals commercial purpose: Influencers use Business or Creator accounts specifically designed for commercial activity
Widespread publicity about music lawsuits: High-profile cases against Bang Energy, DSW, and others have generated extensive media coverage, putting influencers on notice (Business Insider - TikTok Changes)
Industry knowledge: Influencers are sophisticated actors who understand their business model depends on monetizing content
Influencers take deliberate steps to avoid confirming their need for music licenses:
Characterizing commercial accounts as “personal”: Despite using Business or Creator accounts and monetizing their presence, influencers claim posts are personal
Ignoring platform warnings: Platforms notify users when content may violate licensing terms, yet influencers continue using unlicensed music
Relying on ambiguous distinctions: Influencers argue that only explicitly sponsored posts are commercial, avoiding inquiry into whether all their activity serves commercial purposes
Failing to investigate licensing requirements: Despite being aware of high-profile lawsuits, influencers do not seek legal advice or obtain proper licenses
Exploiting platform design: Some brands and influencers switch from Business to Creator accounts to access broader music libraries, deliberately circumventing commercial use restrictions
This pattern constitutes willful blindness: influencers subjectively know there is a high probability their commercial activity requires music licenses, but they deliberately avoid confirming this to maintain plausible deniability.
Not every social media user should be deemed a commercial actor. The framework would establish threshold criteria:
Meeting multiple criteria establishes that the individual operates a commercial enterprise through social media.
Once the threshold is met, all social media posts by that individual should be presumed to constitute commercial use of any copyrighted music. This presumption applies regardless of:
The presumption recognizes that every post by a commercial influencer serves the commercial purpose of building and maintaining their brand value.
Under this framework, influencers with commercial status would need to:
Obtain synchronization licenses from music publishers and record labels before using copyrighted music in any video post
Use only royalty-free or properly licensed music: Limit music selections to Commercial Music Libraries provided by platforms, or obtain direct licenses for other music
Bear the burden of proving authorization: In infringement litigation, the influencer must prove they obtained proper commercial sync licenses
Cannot claim platform licenses as authorization: Platform licenses for personal, non-commercial use would not constitute a valid defense for commercial influencers
The presumption could be rebutted only in truly limited circumstances:
Private accounts with genuine privacy settings: Content shared exclusively with close friends and family, not publicly visible
Pre-commercialization activity: Posts made before the individual crossed the threshold into commercial activity
Accounts clearly segregated from commercial activity: Separate accounts maintained strictly for personal use, with no cross-promotion, monetization, or commercial connections
Critically, the exception would not apply to: - Posts on commercial accounts visible to thousands of followers - Any content that generates engagement metrics - Posts that reference products, brands, or lifestyles associated with the influencer’s commercial brand - Content posted by individuals who claim publicity rights or monetize their identity
The proposed framework aligns with established copyright principles:
Strict liability for civil infringement: Copyright infringement does not require proof of intent or knowledge. The framework simply clarifies that influencers’ use is commercial, triggering liability for unlicensed use.
Burden on defendant to prove authorization: License is an affirmative defense. The framework makes clear that influencers cannot meet this burden by pointing to platform licenses that exclude commercial use.
Commercial purpose determines licensing requirements: Copyright law has long distinguished between personal and commercial uses, with commercial use requiring more robust licensing
Willful blindness doctrine: The framework recognizes that influencers who deliberately avoid confirming their licensing obligations demonstrate willful blindness justifying enhanced damages (Willful Copyright Infringement)
Social media platforms have already recognized the commercial nature of influencer activity through their policies:
The legal framework would simply codify what platforms already acknowledge: influencers operate commercial enterprises requiring commercial licenses.
Music publishers, record labels, and songwriters have invested in creating valuable copyrighted works. They have a right to control commercial exploitation and receive compensation for synchronization uses.
The current system allows influencers to systematically infringe by claiming personal use while operating commercial enterprises. This deprives rights holders of sync licensing fees that would normally be paid for commercial advertising use.
As Warner Music’s complaint argues, by using music “without Plaintiffs’ consent, DSW deprived Plaintiffs and the recording artists and songwriters that Plaintiffs represent of the ability to control how and where their musical works are used”. The same applies when influencers use music without authorization—they deprive creators of both compensation and control.
Under current practice, influencers enjoy an arbitrage opportunity: they claim commercial status to profit from publicity rights, sponsorships, and brand deals, but claim personal status to avoid paying for music licenses. This selective characterization is legally incoherent and economically unjust.
The proposed framework eliminates this arbitrage by establishing that influencers cannot have it both ways. If you commercialize your identity for profit, all your public posts are commercial, including for purposes of music licensing.
German courts have led the way in recognizing that influencers who market their image through social media “operate a company so that the posts constitute a commercial act” (Fashion Law - German Court, Hogan Lovells - Instagram Tags, Two Birds - Obvious Marketing). The Hamburg Higher Regional Court held that when an influencer’s profile demonstrates pervasive commercialization, the entire account is commercial in nature.
American courts should adopt similar reasoning, recognizing that posting itself is commercial activity when one’s business is one’s identity.
Influencers who meet the commercial threshold criteria should:
Obtain sync licenses before using copyrighted music in video content, or limit music to royalty-free Commercial Music Libraries
Assume all posts are commercial: Do not attempt to characterize individual posts as personal to avoid licensing obligations
Maintain documentation of licenses, permissions, and music sources
Budget for licensing costs as a legitimate business expense, just as traditional advertisers do
Seek legal advice on music licensing requirements before posting content with copyrighted music
Brands partnering with influencers should:
Include music licensing provisions in influencer agreements, requiring influencers to use properly licensed music or face contract liability
Provide access to licensed music from Commercial Music Libraries or obtain blanket licenses covering influencer content
Monitor influencer posts for unlicensed music use that could expose the brand to contributory or vicarious infringement liability
Require pre-approval of content before posting, allowing brands to verify proper licensing
Indemnification provisions protecting brands from influencer infringement, though brands should not rely solely on indemnification given potential contributory liability
Music publishers should:
Enforce commercial use restrictions in platform licenses, ensuring platforms accurately communicate licensing limitations to users
Pursue infringement actions against commercial influencers using unlicensed music, as UMG, Sony, and Warner have done
Educate influencers about sync licensing requirements through industry associations and platform partnerships
Offer streamlined licensing for social media sync uses at reasonable rates, making compliance easier than infringement
Use detection technology to identify unlicensed commercial uses of their music catalogs
Social media influencers who have established commercial value in their names and likenesses cannot selectively characterize posts as “personal” to avoid liability for copyright infringement when using unlicensed music. The entire premise of influencer marketing is that these individuals have commercialized their identities—their followers, engagement, and content all constitute commercial assets generating revenue.
When such influencers use copyrighted music in their posts without obtaining synchronization licenses, they commit copyright infringement. The fact that social media platforms provide music libraries for “personal, non-commercial use” does not authorize commercial influencers to use that music, because their use is inherently commercial.
Copyright infringement is a strict liability offense requiring no proof of intent or knowledge. Influencers cannot defend by claiming they believed platform licenses authorized their use—license is an affirmative defense that influencers must prove, and platform licenses explicitly exclude commercial use. Moreover, influencers who deliberately avoid confirming their licensing obligations demonstrate willful blindness justifying enhanced damages.
Recent high-profile lawsuits by Universal Music Group, Sony Music, and Warner Music Group demonstrate that music publishers are aggressively enforcing their rights. Courts have consistently held that platform licenses do not cover commercial use and that defendants’ claimed belief in authorization is irrelevant to liability.
American law should adopt the framework established by German courts: influencers who market their image through social media operate companies whose posts constitute commercial acts. Every post by a commercial influencer—regardless of whether it contains explicit sponsorship—serves the commercial purpose of maintaining and enhancing their brand value.
The proposed legal framework would establish a presumption that all posts by influencers meeting specified commercial criteria constitute commercial use of music, requiring proper synchronization licenses. This framework would:
Influencers have built businesses by monetizing their identities. They enjoy substantial publicity rights protections and command significant fees for brand partnerships. With these commercial benefits come commercial responsibilities, including the obligation to obtain proper licenses for copyrighted music used in commercial content.
The law should reflect this reality: when your business is being you, all your posts are commercial. Influencers cannot commercialize their identities for profit while disclaiming commercial status to avoid paying music publishers for synchronization licenses. Every view, every like, every share increases the commercial value of their brand—and every such post using copyrighted music requires proper authorization from the music’s owners.
It is time for courts to recognize that social media influencers with commercial value in their names and likenesses use music for commercial purposes in all their posts, regardless of subjective characterization. This recognition would restore consistency to copyright law, protect music creators’ rights, and eliminate the current legal fiction that commercial influencers engage in “personal” activity when building their brands.
This article argues that social media influencers who have established commercial value in their names and likenesses should be deemed to use copyrighted music for commercial purposes in all their social media posts, eliminating their ability to claim authorization under platform licenses limited to personal, non-commercial use. The analysis is grounded in:
The proposed framework would create a presumption that influencers meeting specified commercial criteria use music commercially in all posts, requiring proper synchronization licenses from music publishers and record labels rather than relying on platform licenses that exclude commercial use.
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