Music copyright in influencer content: what a brand needs before a song goes under a sponsored post

A song used under a sponsored post is a commercial use. The creator's personal account licence, and the rights behind the track on the platform's own music tool, are not a licence for a brand's promotion. If the track is not cleared for that use, the post can be muted, blocked or removed, and the rights owner may also have a claim under the Copyright Act, 1957. The fix is simple but needs to happen before the shoot: decide whose music it is, clear it in writing for what the brand will do with the video, and write the duty into the contract.

This post is the audio slice of our wider guidance on usage rights for influencer content, which covers the creator's content. It also sits under our ASCI influencer guidelines explainer and our guide to influencer marketing in India. Music brands will also want our music launch playbook, which covers seeding tracks, and our compliance checklist, where the audio check is question eight.

What rights sit inside one song

The Copyright Act, 1957 treats the parts of a song as separate things.

We have not reviewed the rights of performers, which are a further layer.

Section 14(a) gives the owner of a musical or literary work the exclusive right, among others, to communicate it to the public and to make any cinematograph film or sound recording in respect of the work. "Communication to the public" in section 2(ff) means making a work available for being seen or heard, directly or by any means of display or diffusion, whether simultaneously or at times chosen individually. A Reel with a song under it does both: it makes a film incorporating the musical work and it communicates the work and the recording to the public.

Section 51 says copyright is infringed when someone, without a licence from the owner, does anything the Act reserves to the owner. The fair-dealing exception in section 52(1)(a)(i) covers private or personal use, including research. A brand promotion is not private or personal use. That is our reading of the text, not a decided point, but it is the reading we would not bet a campaign against.

The penalty

Civil remedies are available to owners. Criminally, section 63 provides for imprisonment of six months to three years and a fine of ₹50,000 to ₹2 lakh for anyone who knowingly infringes or abets infringement. A proviso allows a court, for adequate and special reasons, to impose less where the infringement was not for gain in the course of trade or business. A paid post is more likely to be for gain. Section 63A raises the minimum for a second conviction to one year and ₹1 lakh. Most disputes end long before a prosecution, with a takedown or a settlement, but the statute sets the backdrop for what a rights owner can ask for.

Owning the video does not mean owning the song

Section 17 says the author of a work is its first owner, with exceptions. Section 17(b) says that where a cinematograph film is made, for valuable consideration, at the instance of a person, that person shall in the absence of any agreement to the contrary be the first owner of the copyright in it. A creator video commissioned for a fee can fall within it, and our usage rights guide explains why the contract should still say who owns the content.

A proviso at the end of section 17 then protects authors of works incorporated in a cinematograph work: clauses (b) and (c) do not affect the right of the author in a literary or musical work. In plain terms, a brand may own the film and still need a licence for the song in it.

The platform layer

Platform terms add a second set of rules that act faster than a court.

• Meta. Its Music Guidelines, effective 26 March 2024, say that use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licences, and that taking part in music revenue sharing does not by itself make a video commercial. Content with music not properly authorised may be reviewed by the rights owner and may be blocked, muted or removed. Meta suggests using short clips and including other watchable content, so the main purpose is not playing recorded audio. Music may not be available in every country, and you can dispute an action through the notification you receive. The page does not discuss brand ads or branded content as such, so do not read more into it.
• YouTube. Its help page says tracks downloaded from the Audio Library will not be claimed through Content ID. It also says YouTube cannot give legal guidance on music issues that arise off the platform, is not responsible for issues with royalty-free music from other channels or libraries, and that tracks under a Creative Commons licence require the artist to be credited in the description.
• Instagram's licensed library. Instagram publishes help pages on its music library, but the one we tried would not load, so we cannot tell you how availability differs between personal, creator and business accounts or how it treats paid promotion. Check the current article before you plan a boosted Reel around library audio.

A clearance table for the situations brands actually face

The pattern is that clearance is by use, not by track. A song cleared for one Reel is not cleared for a six-week creator ad on the brand's account.

The contract clauses

Our influencer contract guide covers the general terms. For music, add five.

1. A creator warranty that any audio they add is owned by them or properly licensed for a sponsored post, and that they will tell you what it is.
2. A brand approval right over audio in the draft stage.
3. Brand-supplied tracks come with the licence scope attached: media, territory, period, and whether paid promotion is included. The creator may use the track only as the licence allows.
4. A re-upload duty. If a platform mutes or removes the post, the creator re-uploads with cleared audio within a fixed time, for example 48 hours, and the brand may withhold payment for that deliverable until then.
5. Allocation of cost and responsibility if an owner makes a claim: who deals with it, and what each side pays. Whether an indemnity will be enforced for a statutory claim is a legal question, so have counsel draft it.

Process: where audio fits in a campaign

• At the brief, decide whether the campaign needs a known song. If it does, start licensing at once; clearances take time, and we have no sourced figure for cost or turnaround.
• At the draft, log each track, its source and its licence in the claims and approvals sheet.
• At approval, confirm the final cut uses the logged audio.
• Before any boost, repeat the check for paid use. Our creator ads and whitelisting service describes how boosted posts run.
• After launch, watch for mutes and claims in the first week, and use the contract's re-upload duty.

UGC briefs have the same issue in a different shape: creators filming for ads often reach for trending sounds. Our UGC service briefs for cleared audio from the start.

What we could not source

We did not source licensing bodies or fee schedules for music in India, the scope of any statutory licence for online use, Instagram's business-account music terms, the rights of performers, or the Meta guidelines' treatment of branded content. We also did not review sections 18 and 19 of the Act on assignments. Ask a media lawyer to confirm each before a large music-led campaign.

To plan a creator campaign with audio cleared from day one, ask for a creator plan. The industries page lists the categories we cast for.

This is general information, not legal advice.