Increasingly, brands are diverting advertising budgets from traditional to digital media, particularly social media. Social media offers a lot: the ability to participate in pop culture and current events in real time, the ability to post content without payment, and the possibility for near-unlimited reach. Unfortunately, while technology has reduced the barriers to entering the advertising market, it has expanded the ways a brand can be exposed to liability.
Influencers as Advertisers
There was a time when creating a commercial was a big-budget affair. Pages of copy were drafted and re-drafted, sets built, camera crews hired, and lawyers retained to pore over every frame before any airtime was purchased. Increasingly, marketing teams are allocating at least a portion of their budget to social media influencers and content creators willing to feature products on their social media feeds. In an effort to create advertisements that feel organic and authentic, marketing teams often give influencers little guidance beyond a product or brand to promote. Posts are made directly by the influencer, often without any review by the brand’s legal team.
Around 2021, several major records labels and music publishers began policing the use of their catalogs on social media. Around that time, the labels and publishers took the position that the use of music in social media posts constituted advertising and, absent a sync license, corporations were committing copyright infringement.
While early matters involved posts made on corporate-owned social media pages, a new trend has begun to emerge: labels and publishers targeting companies for the use of social media influencers as part of their advertising model. Notably, in 2025, labels and publishers filed suit against a number of companies for posts made by social media influencers that incorporated unlicensed music while promoting a brand.
The lawsuits alleged that, although the targeted companies did not directly create or post the allegedly infringing content, the companies were liable for contributory and vicarious copyright infringement for posts made by the influencers.
Proactively Reduce Risk
While suits on this issue continue to play out, they should serve as a cautionary tale: not only can outsourcing create additional work for your internal marketing and legal teams, it may also serve to increase exposure to your company. As these matters continue to play out, brands should consider and explore the following when working with social media influencers:
- Whether the influencer is being hired as an individual, through an LLC, or through a talent or marketing agency.
- Whether any of the entities maintain insurance coverage for the services being purchased, and whether you qualify as an additional insured under such policies.
- Consider contractual provisions addressing:
- Indemnification.
- Be aware that, in the absence of insurance coverage, a judgment may render an influencer insolvent.
- Use of music, art, memes, and other third-party content in sponsored posts.
- Does the influencer or their agency have access to the appropriate licenses for use?
- Would those licenses govern or restrict the format of sponsored posts?
- Removal of posts for:
- Infringement,
- Reputational harm, and
- Inconsistency with brand standards or campaign.
- Indemnification.
Where a brand is reposting sponsored content, additional care should be taken to ensure that your legal team would clear the content had it been prepared in-house for a formal commercial or ad campaign.
Just because the cost of social media-based content is low does not mean the cost of infringement cannot be just as great as that of a traditional big-budget television commercial.
This document provides general information and procedures that may apply to many business operations; however, it is not a comprehensive treatise on the subject and it is not specific to your unique business operations or needs. This document is not intended to substitute for consultation with your staff, specialists, or insurance broker, or for any legal or other professional advice. All information is current as of the publication of this document and we undertake no obligation to publicly update or revise any of this information.
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