Social media has transformed the way in which brands connect with consumers. Through platforms like Instagram, brands promote their products through their own accounts as well as through collaborations with social media influencers. In creating content for posts, reels, and other interactive formats, brands often use songs that are publicly available to promote their products and increase their viewership. However, can brands freely use such publicly available songs for commercial purposes and is there any threshold to use the same? While the music may be available online, its use in commercial content such as promotional or advertising activities are subjected to copyright restrictions. This is precisely what happened between Nykaa and Zee Entertainment Enterprises Ltd.

Story so Far:

Zee Entertainment, one of India’s largest media conglomerates, has filed a suit before the Delhi High Court against fashion and beauty retailer brand Nykaa, alleging that the company used songs in which ZEE owns copyright in twelve Instagram reels to promote its products. According to Zee, it has a licensing agreement with Meta that allows Meta to permit third parties to use the copyrighted songs for non-commercial purposes. Nykaa’s use of these songs for advertising purposes, which constitutes commercial use, has violated the agreement. As a result, Zee is seeking compensation of approximately ₹2 crore (around $210,000). This is not the first time Zee has sued companies for using its copyrighted songs without permission. Zee has also filed a suit against Jio Hotstar alleging that Jio used its copyrighted songs across several television shows and on its streaming platform, even after the licence between the two entities had expired.

In order to understand this issue, we need to first understand how copyright and licensing work in music industry. Just as a song is produced through different stages, rights are also divided accordingly. In copyright, song rights are divided between the lyricist, composer and the person who record the track, which is mostly done by labels like Zee Entertainments. Thus, multiple rights may subsist in a single song, and the use of the song may require permission from more than one rights holder.

Even though there are different types of licensing, the most important one here are the synchronisation (sync) licence and the master licence. A sync licence, as the name suggest, is a license which authorises the use of a song in synchronisation with visual media. This is usually obtained from the songwriter, composer, or publisher. A master licence, on the other hand, is obtained from the record label and covers the specific recorded version of the track. Furthermore, platforms like Meta enter into blanket synchronisation licensing agreements with labels like Zee, wherein former pays royalties to the latter to use a specific set of songs which can be used by the consumers of former, for non-commercial purpose. Even if we look at the guidelines given by Instagram, it is clearly mentioned that “music available in Instagram page library is intended for personal, non-commercial use”. Furthermore, it is also mentioned that certain business accounts and categories of posts do not have access to the music library at all, to make sure the songs are not used for commercial purposes.

This case took another turn when Nykaa argued before the Delhi High Court that Meta should be impleaded as a party to the proceedings, contending that only Meta can determine whether Nykaa’s use of the music violated any existing agreement between Meta and third parties. Considering Instagram’s guidelines regarding the use of music and the safe harbour protection available to intermediaries, there appears to be a less chance of Meta being held liable for the alleged infringement.

This is not the first time such a case has happened. For instance, Sony has previously filed a suit before the Bombay High Court against fashion shopping app Myntra, alleging unauthorised use of its songs. This case is currently pending before the Bombay High Court.

The outcome of the case would surely help to provide much needed clarity on the extent of permissible commercial use of platform licensed music in India. At the same time, it highlights the importance of conducting copyright audits and ensuring compliance with platform-specific terms and licensing conditions before incorporating music into promotional content.

Written by Meghana SS