Trending songs have become a staple of brand communication on Instagram. What once felt like a quick way to tap into culture has increasingly turned into a legitimate advertising format — and now, potentially, a legal minefield. Nykaa recently found itself at the centre of one such dispute after ZEE approached the Delhi High Court, alleging that the beauty retailer used an unlicensed audio track in promotional content. The broadcaster has sought damages of INR 2 crore, arguing that the music was used for commercial gain without the required permissions.
The case has once again drawn attention to a question many marketers tend to overlook while chasing trends: when does a viral Instagram audio stop being harmless social media participation and become commercial exploitation? Most users have added trending music to Stories or Reels without a second thought, but brands operate under a different set of rules. According to ZEE, while its soundtracks may be accessible on Meta-owned platforms, access is limited to non-commercial use. In other words, a consumer using a song in a casual Reel is treated differently from a brand using the same track to advertise products.
That leaves one obvious question: at what point does a Reel stop being just another piece of social content and start qualifying as an advertisement in the eyes of the law?
Defining commercial use
In today’s digital advertising landscape, the line between content and advertising is increasingly difficult to draw. Almost every Reel posted by a brand carries some promotional undertone, but not every post is legally treated as an advertisement. Some are simply designed to maintain visibility and cultural relevance.
According to Shahir Muneer, Founder and CEO ofDivo, the distinction comes down to intent. A post becomes commercial when it is used to sell a product, service, or brand -whether directly through paid campaigns or indirectly through influencer collaborations and promotional messaging. “If there is commercial intent or value attached to the content, even a simple call to action can make it a commercial post,” he says.
Muneer adds that brands often misunderstand how music licensing on social platforms actually works. “The biggest misconception is that being ‘available on the platform’ means it is ‘free for brands’. Platform libraries typically cover personal use, but commercial use requires separate permissions. Other common myths include the idea that using only a few seconds, giving credit, or participating in a trend provides safety. Music rights are layered, covering sound recordings, publishing, lyrics, and compositions, and each layer must be cleared for commercial use,” he explains.
That view is echoed by Viren Sean Noronha, Co-founder & CEO of The New Thing, who argues that the threshold for commercial use is fairly straightforward: if music is used to further a brand’s business interests in any way, it enters commercial territory. According to him, the bigger issue is not confusion around the law, but how casually the industry has treated the practice for years.
“Music is perhaps the biggest grey area in the entire ecosystem,” he says. “Adam Mosseri said it plainly: the Instagram library has secured usage rights for individuals and creators, not brands. The music library being available on the platform does not mean it is open season for commercial use by companies. That distinction alone is where most brands trip up, and where most legal disputes begin.”
Sneh Chheda, Associate Vice President – Schbang Fluence, notes that the creator economy has grown at a rapid pace, and it requires several industry-level structuring and formalisation. “At Schbang Fluence, we’ve already developed a framework over the past couple of years, which keeps evolving based on our practical experiences and industry-wide learnings. This framework helps us better navigate music licensing and copyrights in creative executions, and we expect more agencies and brands to adopt similar structures in their influencer marketing processes,” he says.
Adv. Aazmeen Kasad lays out the legal framework for the commercial use of copyrighted work, she notes “Commercial Usage with reference to utilization of a third party’s intellectual property rights (hereinafter referred to as ‘IPRs’) entails use for promoting one’s business, generating revenue or any kind of financial or commercial gain. IPR laws mandate seeking licences or permissions from the IPR owners before any IPR is used for commercial use. This is as opposed to use of IPRs for personal use or non-commercial use or where one falls under the Fair Use exception, for example,”
She further highlights the industry misconception around the usage of copyrighted work in the influencer marketing ecosystem. “Many Brand-owners or advertising agencies or production houses are under the mistaken notion that if an Influencer is using music in his / her reel / content / branded video, it falls under the Fair Use exception or personal use exception, which is not the case.”
The gaps in the ecosystem
One thing is clear: the ZEE-Nykaa dispute has brought renewed scrutiny to the broader issue of unlicensed music being used in commercial content. But industry experts say music rights are only one part of a larger structural problem within the digital content ecosystem.
Muneer says the case exposes the widening gap between the speed at which digital marketing operates and the legal frameworks governing copyrighted material. “The industry often assumes that trending tracks are automatically safe for brand campaigns. With rights owners monitoring usage more closely, brands must treat music licensing as a core part of campaign planning rather than an afterthought,” he says.
Noronha points to another fault line: accountability. In campaigns involving brands, agencies, creators, influencers, and media partners, ownership of compliance often becomes unclear once the execution phase begins. “That ambiguity is exactly where disputes breed,” he says.
“Nykaa is practically a category leader. The same goes for ZEE. When entities of that size dispute what should be a routine licensing question, it signals that the entire ecosystem is operating without a shared rulebook.”
Chheda argues that with the entry of new creators, brand and agencies’ standardisation and education have taken a backseat. “ This creates larger gaps in misunderstandings around music licensing. Thus, we urgently need proper frameworks, structuring, and education passed out to all stakeholders. In fact, we’ve already seen how, at Schbang, stronger collaboration between our legal teams, creative teams, and operations has helped us navigate this complexity, and we anticipate a lot more of this cross-team collaboration across the industry,” he notes.
The case ultimately reflects the growing complexity of social-first advertising, where brands are expected to react instantly to trends while also navigating layered copyright regulations. Creating culturally relevant content without stepping into legal grey zones remains one of the industry’s biggest balancing acts. The internet wanted “move fast and break things”, and copyright law, it seems, responded with “challenge accepted.”
According to Adv.Kasad this is not a new issue as it has been a industry practice for ages especially around the usage of minor parts of unlicensed work. “We are dealing with Digital Media today where it is much cheaper to generate or create promotional material and hence the problem seems much larger; however this is an age-old issue where many advertisers, advertising agencies and / or production houses believe that if one uses a few seconds of a popular existing track or upto 4 seconds of the track, they do not need to seek a licence for its usage,” she says.
She adds that this case also brings the legal advisers within the organisation in limelight. “The present dispute presents an opportunity for the legal professionals and compliance officers within the advertiser’s organisations to ensure that a complete understanding of the IPR laws is mandated within the digital marketing ecosystem, including the organization that briefs the agency, the content generators, influencers and the production houses (if any)”
Compliance without slowing down creativity
In the age of trends, waiting for legal clearance can mean losing relevance. By the time permissions are secured, the trend may already be dead and the content ineffective.
Muneer says brands should implement a disciplined music clearance workflow, including using licensed tracks from labels or library service providers and conducting regular team awareness sessions on usage policies.
“To maintain speed, brands can maintain a pre-approved music bank, utilise original sonic assets, and establish quick escalation routes for trending tracks. The rule should be to move fast, but never publish commercially until the rights are clear,” he says.
Noronha believes the process of securing rights quickly enough to match the pace of trends is so difficult that many brands knowingly take the risk for the sake of engagement.
“The truth is uncomfortable but honest: brands post the content, gain the impact, and take the asset down after it has done its job. The alternative is hunting for the right contact, drafting emails, waiting days, negotiating terms, and watching the moment pass entirely,” he says.
Noronha argues that the larger issue lies in outdated licensing systems that were never designed for the velocity of modern social media. He believes the industry needs formalised channels and faster, standardised clearance mechanisms that align with how digital content is created and consumed today.
“The frameworks were written for a world that no longer exists. Until that changes, brands will keep making the same calculated gamble, and rights holders will continue to have legitimate grievances,” he adds.
Chheda believes that the case is a pivotal moment: “ Creators can build safer content approval and music selection practices by pairing creativity with structured guidance. Agencies and brands must invest in education for their teams and creators alike, when they do, content thrives, staying agile while having a clearer safety net,” he says.
Adv.Kasad believes that general awareness and a structured checklist can keep brands on safer side. “Having personally conducted scores of such workshops in several large and small Advertisers and Advertising agencies over the years, I can vouch that by generating adequate awareness of the do’s and don’ts through workshops on Introduction to IPRs etc., creating compliance checklists for the Influencers and brand-managers and then monitoring compliance at the end of the campaign creation before it is released in the media, one can build safer compliance systems in the industry.” she notes.
The dispute also raises a larger platform-level question: if brands either misunderstand the limits of commercial usage or knowingly operate in grey areas, should social media platforms do more to flag, restrict, or clarify how copyrighted music can be used in branded content?
Platforms making it obvious
Platforms already know which tracks are licensed and can often identify when content is commercial in nature. That raises another question: could social media companies build stricter systems that prevent disputes like the ZEE-Nykaa case before they escalate into litigation?
Muneer says some safeguards already exist. He points to YouTube’s copyright claim infrastructure, where certain content can be flagged or restricted from monetisation and paid promotion unless the necessary licences are in place. At the same time, he believes the larger responsibility still sits with brands. “Brands should not wait for platform-side solutions. The responsibility to clear rights remains with the brand, and the industry must start treating music like any other creative asset, such as talent or footage, that requires permission before use,” he says.
According to Noronha, the ZEE-Nykaa dispute could push platforms and rights holders towards more formalised systems if similar cases continue to emerge. However, he also points out that platforms themselves benefit from trends, creator activity, and branded engagement, making any restrictive measures commercially sensitive.
“What is more likely is a push towards expanded commercial licensing catalogues,” he says. “For brands, that is actually a workable outcome. A pre-cleared, trend-relevant music library built specifically for commercial use would remove the guesswork entirely.”
Disputes like these could eventually push platforms to adopt stronger commercial-use warnings, Chheda points out. “Today’s leading platforms are incredibly creator-friendly, constantly enabling better tools and features. I do see them taking more proactive initiatives, given the attention this case is getting, platforms may create even better tools to help creators and brands navigate these challenges,” he explains.
Adv.Kasad sees this case as a positive sign in platform compliance reforms. “There is always a silver lining around any cloud and so any dispute where the damages claimed are substantial serve as an adequate push for a reform within the organization (and hopefully, all platforms and the industry as a whole) and thereby, compliance.” she notes.
The dispute has already broadened the conversation about how copyrighted music is used across the creator economy and the branded content ecosystem. What began as a legal disagreement between two large companies now reflects a broader industry reckoning around ownership, permissions, and platform responsibility in the age of short-form video.
Where does it go from here?
As brands, platforms, and rights holders continue navigating the blurry boundaries of commercial content, the ZEE-Nykaa dispute may ultimately become less about one campaign and more about how the rules of music licensing evolve for internet-era advertising.
Muneer believes the case is unlikely to discourage brands from using music altogether, but it may force the industry towards more structured and compliant practices. “Brands will continue using trends, but with clearer approvals, licensed catalogues, original music, and stronger documentation. For music owners, this is also an opportunity. Short-form branded content can become a meaningful licensing market if the ecosystem becomes easier, faster, and more transparent,” he says.
Chheda expects the ecosystem music licensing frameworks to evolve with more clarity and structure as influencer marketing goes through its many phases. “As this industry evolves further, I see agencies and brands building these collaborations into their DNA. The role of legal teams will become even more vital, not just for legal advice but as partners guiding creative and operations teams through these evolving complexities,” he says.
For the future implication Adv.Kasad sees the overall ecosystem evolving with a sync. ” Licensing comes at a cost. So, if Influencers intend to use any licensed music and have to pay a fee for it, it will have a commercial ramification on the cost and the budgets for any branded content. That said, most licenses are now pre-printed forms that one signs off post negotiations on the fee. It will just take awareness amongst the micro influencers on the requirement, and the rest will flow smoothly.
Alternatively, necessity is the mother of invention. You never know what AI tools the Influencers use to generate new music for their branded / commercial content, and since the IPR on AI generated content is being hotly debated, that is a topic for another day.” she concludes.
