The labels are now suing brands over creator videos. Which posts with popular songs put you at risk?

KEY TAKEAWAYS

1. Platform music libraries split by use, not account type. A sponsored post on a personal account is still marketing.
2. Recent suits reach paid creator posts, brand reposts and campaign videos left up after a licence ended.
3. Statutory damages are counted per work, so the number of distinct songs matters more than the number of posts.
4. Put music rules in the creator brief and audit the archive by song before a letter arrives.

The record labels have spent two years suing brands over music in social posts. Since August the targets have grown larger and the claims have moved past the brand's own account. They now reach the creators it pays, the videos it reposts and the campaign clips it forgot to take down. This piece sets out what changed, which posts carry the risk, and how to check an account. It is not legal advice. For a live dispute, ask a copyright lawyer.

What happened in the last 60 days?

Three things.

On 21 August 2026, Sony Music sued Kroger and related companies in the federal court for the Central District of California. The complaint alleges at least 392 unlicensed uses of Sony recordings. Those uses sit on Kroger's own accounts and on the accounts of influencers it paid. Sony also says seven Kroger brands kept campaign videos public after their music licences had expired.

In August, a federal judge in Ohio dismissed DSW's attempt to get a ruling that its posts did not infringe Sony's rights. He called it an anticipatory filing and did not rule on the merits. DSW and Sony then filed a settlement in principle on 17 August, with terms undisclosed. Warner's separate suit against DSW is still pending.

On 9 October 2026, Warner sued six companies linked to EssilorLuxottica, the owner of Ray-Ban and Oakley, in Manhattan. It alleges use of at least 427 works across Facebook, Instagram, TikTok and YouTube. Warner says brand employees commissioned, reviewed or reposted influencer clips. It also disputes an "original audio" label on one Sunglass Hut post.

These sit on a longer line. Earlier in 2026, UMG sued the fashion brand Quince (16 April), and Warner and Crumbl agreed to settle a suit over 159 works (May). All of these are allegations, not findings, except where noted below.

Why is a trending sound not cleared for a brand?

Because the platforms license music by use, not by account type.

TikTok's help centre says businesses cannot use its general library for commercial purposes and should use the Commercial Music Library for all commercial activity. The library holds about 1 million tracks, is free, and covers organic posts, video ads and branded content. A business account sees only those Commercial Sounds when it taps Add Sound. Meta's music guidelines bar commercial or non-personal use without licences, according to reporting on the Kroger complaint, which says that rule has stood since at least April 2018. Meta points brands to its Sound Collection instead.

The split follows the use, so a personal account does not escape it. GEMA, the German collecting society, says a TikTok video can be commercial if it markets a product, service or brand, or is sponsored, even on a private account. A creator's paid post is marketing.

One more limit is easy to miss. GEMA says TikTok library sounds, including Commercial Music Library tracks, may be used only on TikTok. A cleared TikTok cut is not cleared for Reels, YouTube or your homepage.

Where does a creator's song become the brand's problem?

This is the gap in most guides. The guides that rank for this topic are mostly written by music libraries. They explain business versus personal accounts well. They say little about who is liable when the song arrives inside creator content.

The cases point to four routes.

1. The brand reposts it. Once the brand uploads the video, it is the brand's post. The Quince complaint says the company reposted an influencer's paid partnership video and changed only the music.
2. The brand controls it. Vicarious liability needs control and a financial benefit. In UMG v. Bang Energy in 2022, the court found that Bang's right to review influencer videos and refuse payment met the control test. It left the benefit question for trial. Recent complaints lean on the same facts: brand approval of Instagram collabs, an affiliate rule letting Kroger's jewellery brand demand edits or removal within 24 hours, and Quince job listings describing creative direction and reshoots.
3. The brand drives it. Contributory claims say the brand induced or materially contributed. Bang won that point in 2022 because there was no evidence that it chose the music. Sony's Kroger complaint pleads this route too, alleging Kroger drove its influencers' use.
4. The brand boosts it. Meta's creator page says content with licensed music cannot run as a partnership ad. TikTok's Spark Ads help page says nothing about music rights. One ad tools vendor reports that Spark Ads with non-library audio are blocked at review, but cites no TikTok source, so treat that as unconfirmed.

The control clauses that make a creator programme work, such as review rights, approval and payment holds, are the same facts the labels use. You cannot drop them. You can make sure they also cover the music.

Where do the sources disagree?

Do platform licences already cover brand posts? DSW argued they did, because the labels license their catalogues to the platforms. Vanderbilt's Joseph Fishman told Bloomberg Law the platforms' terms clearly separate commercial from personal use. Georgetown's Kristelia Garcia suggested the platforms' invitations to use music might be misleading, which could be a claim against the platforms, not a licence. The DSW dismissal was procedural. The platform documents themselves support Fishman: neither TikTok nor Meta offers its general library for marketing.

Are paid creator posts safe if the creator uploads them? A 2022 PR agency summary said the Bang court held influencer posts did not infringe because user licences covered them. Arnold and Porter's reading of the same order is narrower. Contributory liability failed on the evidence, while control for vicarious liability was met. In the related Sony case, the Copyright Office summary records that influencers used Sony's music in at least 98 promotional videos. The court found Bang liable, including on vicarious grounds, and rejected its fair use defence. The law firm reading is closer to the order. There is no creator safe harbour. The answer turns on control and benefit.

Is a short clip fine? No source we found supports any safe number of seconds. The Bang court rejected fair use on all four factors.

How is the exposure counted?

U.S. statutory damages run up to $150,000 per work for wilful infringement. The key word is work, not post. PPC Land points out that a widely shared $58.8 million figure for Kroger multiplied 392 uses by $150,000, while the complaint counts uses, not distinct works. Reporting on Luxottica puts its theoretical ceiling at $64.05 million for 427 works. A song can count twice, because the recording and the composition often have different owners, as in the Quince exhibit of 67 recordings and 71 compositions.

A worked example (hypothetical)

A hypothetical apparel brand has 600 posts across TikTok and Instagram. An audit finds 140 that use popular, unlicensed songs: 80 on the brand's account, 45 paid creator posts it approved, and 15 reposts of creator videos. They contain 46 distinct songs.

• Counting by post, the ceiling looks like 140 times $150,000, or $21 million. That is the wrong denominator.
• Counting by song, the ceiling is 46 times $150,000, or $6.9 million, and up to twice that if separate owners claim both the recording and the composition (our calculation).

Both are ceilings, not likely awards, and courts can award far less. The useful lesson is about order of work. Removing one song from every post it appears in does more than removing many posts that each use different songs. Start with the songs that repeat.

Which posts need action?

Instagram added Replace Audio on 21 July 2026. It swaps the music on published feed posts and carousels without resetting likes, comments or reach. Instagram has not said it applies to Reels, and nothing we found says it cures past use. It stops the use from continuing.

A seven-step check

1. Export every post. Cover brand accounts, Stories highlights, and creator posts you paid for or approved, across all platforms.
2. Tag the audio. Mark each one as cleared library, licensed with an end date, original, or popular and unlicensed.
3. Count distinct songs. Rank them by how many posts use them. Fix the repeats first.
4. Fix by post type. Use the table. Replace Audio on Instagram feed posts, re-edits from creators, takedowns for expired licences.
5. Rewrite the creator brief. Name the allowed libraries per platform. Ban general library songs in paid posts. Tie payment approval to an audio check. The National Law Review suggests a rights warranty, an indemnity and a takedown right, while noting an indemnity is only as good as the creator's ability to pay.
6. Keep a clean master. Store every edit without platform music, so it can be re-scored for each destination and for ads. If you run creator posts as ads, our piece on creator handle versus brand handle covers that choice.
7. Re-check before every reuse. A new platform, a boost, a new market or an expiring licence each changes the answer. Log it with the track.

What this changes

Popular music was always unlicensed for brand marketing. What changed is enforcement. The labels now name the creators, the reposts and the archive, and they count by song. A brand that briefs creators on cleared music and audits by song chooses when to do the work. One that waits for a letter does not. Sound still matters for the opening seconds, and our note on what the platforms measure in a hook covers that. If you want a second view of your creative process, join the waitlist or write to esh@ethosengine.io.

Questions

Can a business account use trending sounds on TikTok or Instagram?

Not for marketing without a separate licence. TikTok says its general library is not for businesses' commercial purposes and points them to the Commercial Music Library. Meta's music guidelines bar commercial or non-personal use without licences, and Meta offers its Sound Collection for that use instead.

Is a brand liable for music in an influencer's paid post?

It can be. In the 2022 Bang Energy case, a court found that the brand's right to review and refuse payment for influencer videos met the control test for vicarious liability. Current complaints against Kroger, DSW and Luxottica all include influencer content.

Does a TikTok Commercial Music Library track cover a Reel or a website video?

No. GEMA, the German collecting society, says TikTok library sounds, including Commercial Music Library tracks, may be used only on TikTok. Moving the video to Instagram, YouTube or your site needs fresh clearance.

Does Instagram's Replace Audio fix past use of an unlicensed song?

It removes the song going forward on feed posts and carousels and keeps the engagement. Nothing we found says it cures earlier use, and Instagram has not said whether it applies to Reels.

Sources

1. IBTimes UK, Warner Music sues Ray-Ban owner over unlicensed Taylor Swift clips ibtimes.co.uk
2. Music Business Worldwide, Warner Music sues Ray-Ban and Oakley owner Luxottica over alleged use of 427+ works musicbusinessworldwide.com
3. Law Commentary, Warner Music sues Ray-Ban owner over 427 songs used in social media ads lawcommentary.com
4. Music Business Worldwide, Sony Music sues Ralphs parent Kroger over alleged copyright infringement in social media ads musicbusinessworldwide.com
5. Digital Music News, Sony Music Kroger lawsuit digitalmusicnews.com
6. PPC Land, Sony Music sues Kroger over 392 songs in $58.8M copyright claim ppc.land
7. Music Business Worldwide, Judge tosses shoe retailer DSW's preemptive copyright suit against Sony Music musicbusinessworldwide.com
8. Music Business Worldwide, DSW reaches settlement in principle with Sony Music musicbusinessworldwide.com
9. Music Business Worldwide, UMG sues fashion brand Quince over unlicensed use of music in TikTok posts musicbusinessworldwide.com
10. Music Business Worldwide, Warner Music and Crumbl reach settlement musicbusinessworldwide.com
11. Bloomberg Law, DSW faces tough odds in suit testing social media music rules news.bloomberglaw.com
12. Arnold and Porter, Advertisers may be liable for copyright infringement arnoldporter.com
13. MWW, What the UMG ruling means for your TikTok marketing strategy mww.com
14. U.S. Copyright Office, Sony Music Entertainment v. Vital Pharmaceuticals fair use summary copyright.gov
15. TikTok Ads Help Center, How to use the Commercial Music Library ads.tiktok.com
16. TikTok Ads Help Center, Commercial Music Library ads.tiktok.com
17. TikTok Ads Help Center, About Spark Ads ads.tiktok.com
18. Instagram Creators, Partnership ads creators.instagram.com
19. GEMA, I want to use music on TikTok. What do I have to watch out for? gema.de
20. Music Business Worldwide, Instagram now lets users swap the music on published posts and carousels musicbusinessworldwide.com
21. Digital Applied, Social video music rights platform comparison digitalapplied.com
22. National Law Review, Copyright infringement litigations based on influencer posts natlawreview.com
23. Soundstripe, TikTok music licensing rules for creators and brands soundstripe.com
24. AdRate, TikTok ads sound not licensed for commercial use adrate.io

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