You’re launching a new product. The campaign is ready, the reel is edited, and you pick a track from Instagram’s in-app music library. You assume it’s fine to use. That assumption may have cost Nykaa 2 crore rupees.
The case
In April, Zee Entertainment sued Nykaa, a beauty and fashion e-commerce platform, at the Delhi High Court, asking approximately INR 2 crore in damages. Zee alleged that Nykaa used its copyrighted songs in its Instagram reels for promoting its products, without a licence. The songs were drawn from Instagram’s in-app music library.
The dispute turns on a single, widely misunderstood point. Zee does hold a licensing agreement with Meta that permits Instagram users to access its music through the in-app library. That licence however, is for personal use. In fact, Instagram’s music library policy clearly limits the use of the library for personal, non-commercial use only. Meta’s Music Guidelines also state that using music for commercial purposes is prohibited unless you have a separate licence. Many brands simply miss this.
Nykaa has since taken the flagged links down, but if the reels did infringe, taking them down now doesn’t change that.
The licensing gap
So how is a brand meant to use a popular track legally? Pairing music with visual content, whether for an ad, a reel, or a scene in a TV series, needs a specific permission called a synchronisation licence, or ‘sync licence’. This must be obtained directly from whoever owns the rights to the recording, in this case Zee.
Meta also offers a simpler route. Its Sound Collection is a catalogue of royalty-free music cleared for commercial use, including in advertisements, so brands can use this without risking copyright liability.
What counts as ‘commercial use’?
Meta’s terms hinge on one phrase: ‘commercial use.’ Courts have not defined ‘commercial use’ in the specific context of social media marketing. They have, however, interpreted it in other settings, such as fair dealing under copyright law and consumer disputes. A consistent that thread runs through these is whether the use is tied to profit, competition, or revenue.
In ESPN Star Sports v. Global Broadcast News Ltd. (2008 SCC OnLine Del 1385), the court was assessing whether news channels replaying licensed cricket footage could claim the ‘fair dealing’ exception for news reporting. It found that the licensed footage was aired repeatedly, promoted ahead of time and packed with advertisements, and so the use went beyond genuine reporting and amounted to commercial exploitation. The marker of commercial use was that the work was being deployed to draw audiences and earn revenue, not merely to report.
The Delhi high court took a similar view in ICC Development (International) Ltd. v. New Delhi Television Ltd. (2012 SCC OnLine Del 4919), holding that running ads around a programme built on another’s footage was a way of earning profit at the rightsholder's expense, not genuine reporting.
The principle is more well established in consumer law cases, as courts often need to separate personal use from commercial purpose, which falls outside the protection of consumer law. In Poly Medicure Ltd. v. Brillio Technologies Pvt. Ltd. (2025 INSC 1314), the Supreme Court used the dominant intention test. It held that the identity of the person making the purchase, or the value of the transaction, is not conclusive; what matters is whether the main intention behind the use is to generate profit.
These cases point in one direction. Use of someone else’s work that is directed at profit or audience pull tends to be commercial, not personal. Applied to social media, that suggests that if your account exists to sell, market, or promote a brand or its products, your use of music is likely commercial, whether the account belongs to a brand, a business profile, or a creator posting sponsored content.
The influencer blind spot
The Nykaa case involves direct use of in-app music on a brand’s own account handle, but the same copyright exposure arises when a brand works through an individual creator. Here, ASCI’s Guidelines for Influencer Advertising in Digital Media are a helpful guide on what a commercial relationship with a creator may look like. The guidelines require disclosure of any ‘material connection’ between a brand and a creator, defined broadly to cover payments, free products, discounts, gifts, trips, hotel stays, media barters, and even family or employment ties. This means that if there is any material connection with the creator, that post is likely commercial use even though it sits on a personal account.
A brand that reviews, selects, and approves influencer content becomes a knowing participant in how that content is made and distributed, and can be drawn into a copyright claim alongside the creator. Brands that hand influencers a brief without specifying cleared music are inheriting an exposure they may not have thought about.
The Edge Cases
A few situations sit in the grey zone. A brand account congratulating the Indian cricket team on a World Cup win? A business page posting an Independence Day message? A creator making a generic lifestyle reel that isn’t sponsored? These questions don't have definitive answers yet, and that’s partly why the Nykaa case matters beyond the parties involved. A final judgment in the Nykaa case could clarify where personal sharing ends and commercial use begins in the social media and brand marketing context. Nykaa has requested the court to bring Meta into the suit, which could push the question of platform responsibility before the court too.
What to Do Now
As a brand owner, marketing company, or an advertising agency, it’s worth reviewing how music is used across your content and campaigns. Here’s a few things you can do:
- Review your brand’s existing social media content for music sourced from Instagram’s in-app library.
- Going forward, use Meta’s Sound Collection for commercial posts, or obtain a sync licence from the rightsholder before using any third-party track.
- Review your influencer contracts. They should require creators to only use music cleared for commercial use and give you the right to approve the music before anything goes live.
- If you run campaigns at scale, it can help to build a pre-cleared in-house music library.
Platforms typically put responsibility for music use on the person posting. Meta’s guidelines, for instance, state that posts using music owned by a third party may be blocked, muted, or removed, and that users are responsible for their own content. The safest move is to understand which side of the personal-commercial line your content falls on, as the cost of getting it wrong is no longer theoretical.
Author Credits: Vanshika Thapliyal and Pallavi Sondhi, with inputs from Aman Taneja.
Image credits: AI generated
For any queries, write to us at contact@ikigailaw.com
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