Zee Entertainment (“Zee”) approached the Delhi High Court to seek damages amounting INR 2 crores (approximately $210,000) from Nykaa for allegedly using copyrighted songs in their 12 Instagram reels (short form videos). But this is not a standalone tale of a music rights holder suing a brand for unlicensed use of its tracks in social media marketing – it is the familiar storyline across the globe – whether it be the Warner Music Group suing Iconic London Ltd. (USA) or Sony Music Entertainment Canada filing a lawsuit against SUVA Beauty (Canada).
A song available on a platform’s music library cannot always be used freely by every type of user and that distinction forms the epicentre of this dispute. The Zee-Nykaa lawsuit emerges from the licensing agreement between Zee and Meta (Instagram’s parent company) which allows the Meta users to use its copyrighted music. But the catch is that it is merely for non-commercial purposes, i.e., for regular users. Nykaa, however, according to a Reuters report, had used those songs to promote its products.
According to Meta’s Music Guidelines, “[u]se of music for commercial or non-personal purposes […] is prohibited unless you have obtained appropriate licences” (emphasis supplied). Even Instagram’s emphasizes that the music library is solely for “personal, non-commercial use”. Interestingly enough, Meta’s Sound Collection is a catalogue of royalty-free music that caters to even commercial content (can be used without attracting copyright liability).
To understand what and where exactly Nykaa went wrong, we need to understand how music licensing works out. A song contains two separate elements – one for the musical work (containing lyrics and composition), and the sound recording. Recording labels, like Zee, finances and produces the recording, thereby they own the copyright in the sound recording (called the ‘master’ of the audio file), which is available on streaming platforms. It can also be a case that these components may belong to a different set of entities.
If the brand intends to use the actual produced track, a ‘master license’ becomes important. The recording label can alone grant a master license as the sound recording is a separate copyright from the underlying musical composition.
When visual content, for advertising or filming purposes, is to be combined with music recordings, brands can opt in for synchronization licences or ‘sync licences’. Granted mostly by the songwriter or music publisher, the licensee is then permitted to use the composition and lyrics of the song for the video content. There is a way around the requirement of a master license, too. If a producer commissions a fresh recording of a song, they merely need a sync license (often less expensive than the master license) – that is why cover versions are common in advertising.
With the proliferation of short-form video content, the concept of ‘blanket synchronization licenses’ has come up. Under this arrangement, the platform negotiates directly with the record label, and this allows millions of users to add music to their videos on an everyday basis. This is what the Meta-Zee licensing agreement represents.
Now, Nykaa allegedly did not have the requisite licenses for using the copyrighted works. While it may not have directly minted any profits from those reels, they definitely aided in providing more exposure and increasing Nykaa’s engagement. As a result, the said usage squarely falls in the category of “commercial purposes”. Since copyright infringement is a strict liability claim, a case of direct infringement may be made out. Though no parallel cases have been concluded in India (Sony v Myntra remains sub-judice), multiple such suits across the borders have resulted in the favour of the record label (here and here). From what I observed, there is a tendency for such cases, involving record labels and brands, to end in out-of-court settlements (here, here, here, here, here).
What about Brand Collaborations?
Taking a segue from the issue of direct infringement, another bend in this topsy-turvy road is brand partnerships with creators. It may be assumed that when brands collaborate with independent creators, it will be the latter bearing the responsibility for music licensing, however, that is far from the truth. In such instances, the brand could be held liable for secondary infringement. Broadly, secondary infringement can be of two types: contributory and vicarious.
As per S. 51(a)(ii), if an entity knowingly, or with reasonable grounds to believe, allows a place to be used for profit-making communication out of a copyrighted work to the public where such communication amounts to copyright infringement (falls in the category of contributory infringement). As held in Sony v OFRA (paras 102-112), a brand actively reviewing, selecting, copying, and re-posting influencer-created videos will qualify as a secondary infringer.
Another strand of liability that can be imposed is vicarious copyright infringement. In UMG Recordings v Vital Pharmaceuticals (pgs 16-17), though the court denied summary judgment on the account of insufficient evidence, it recognized that a brand could be liable if proven that it, regardless of it having actual knowledge of the act, exercised ‘sufficient control’ or received financial benefit from influencer content. Statutorily, India does not have an explicit provision of sorts.
The Illusion of Accessibility
But why do brands, even established ones, keep getting this wrong? The often-caused violation arises majorly because one, some brands do not operate from business accounts but rather regular accounts, giving them seamless access to the platform’s music library, and two, even though they opt for the former, social media platforms do not restrict access but rather shift liability on brands to understand the licensing implications. There is a sense of opacity that props up for businesses using copyrighted music. Such a structuring comes from the relationship of Meta or other such platforms with music labels – while the duty of Meta is to enforce agreed licensing conditions, usually done via a notice-and-takedown system, it is never to prevent violations proactively.
Further, even if a copyright violation takes place on their platform, they would not be liable for the same. In My Space Inc. v Super Cassettes Industries Ltd., the Division Bench of the Delhi High Court noted that My Space was merely an intermediary, i.e., a conduit for communication, and had no “actual knowledge” of it (here and here). Only after information related to the infringing content is supplied to social sites do they acquire ‘awareness’. Given this, a channel such as Meta falls short of proving the elements of Section 51(a)(ii) of the Copyright Act 1957 and is exempted from liability due to the Section 79 safe harbour under the IT Act.
In toto, with platforms having no skin in this, record labels, brands, and creators are left alone to navigate the dispute among themselves. With the next hearing listed for May 26, we have to wait and watch closely as to how Zee-Nykaa’s lawsuit ends!
I would like to thank Jaskeerat Singh (4th year, Christ University) for sharing some useful research work on this topic that helped me while writing the draft.