Companies that engage influencers to promote their brands on social media face a growing risk of being sued for copyright infringement when those influencers use unlicensed music in their posts. While the legal landscape is evolving and the threat of litigation is real, companies are not powerless – there are practical steps they can take to manage and reduce this risk. By implementing thoughtful contracts, educating their teams, and actively monitoring influencer content, brands can better protect themselves from costly disputes and potential liability.

Music Companies vs. DSW: A Case in Point

The popular shoe store DSW is embroiled in three separate copyright lawsuits against major record labels and music publishers. In May 2025, Warner Music Group (WMG) sued DSW in the Southern District of Ohio, alleging that music owned or controlled by WMG appeared – without a license – in DSW promotional videos posted by influencers on social media platforms. In July, DSW filed a declaratory judgment action against Sony Music Entertainment (Sony), Universal Music Group (UMG), and BMG Rights Management, seeking a court ruling that it is not liable for (and there is no infringement by) influencer videos that incorporate unlicensed music. Then, in August, Sony filed its own complaint in the Central District of California against DSW, again targeting the same category of posts.

Most videos at the heart of each case were posted on social media platforms (e.g., YouTube, Instagram, and TikTok) by influencers who had some form of commercial relationship with DSW to promote DSW. The influencers are not DSW employees, and the videos did not appear on DSW-owned accounts. Because the alleged infringement took place as part of content that DSW did not upload, the music companies are advancing “secondary liability” theories; in essence, the music companies say that DSW benefited from, or failed to police, the influencers’ use of unlicensed music, and therefore are responsible for the copyright infringement.

Disputes of this kind are not new. Brands such as DSW have faced claims for music used in influencer content since the advent of social media. Most matters have settled quietly before a lawsuit is initiated – licensors wanted money, brands resisted but ultimately paid something. However, recently the labels appear more confident in their legal theories of liability, and companies have become willing to litigate rather than write a check they view as unjustified and excessive. DSW is not the only brand that has been targeted by the music companies.

Both Sides May Have Strong Legal Arguments

The music companies’ legal theory is simple: copyrighted music appeared in commercial posts without a license, copyright infringement is a strict liability offense, and therefore there is infringement. The music companies claim they can sue anyone who materially contributes to, profits from, or otherwise is legally responsible for the infringement, and they chose to sue the brands instead of individual influencers for both convenience and because the brands (often along with their insurers) have deeper pockets. Music companies also allege “willfulness” to support high damages demands, pointing to the pop-up copyright infringement warnings the platforms present to those uploading content that require the users to confirm they are legally permitted to use all content in the post.

DSW’s defenses, presented in its answer in the WMG case and in the declaratory judgment complaint against Sony, are primarily focused on the “bad behavior” of the music companies and the social media platforms, and include defenses such as estoppel and copyright misuse.

First, DSW explains in detail that the music companies and platforms encourage influencers to use copyrighted music, while at the same time suing for that use. The platforms often have libraries of music with confusing terms that, per the fine print, only permit some types of uses and prohibit others. The platforms also make it mechanically simple to overlay music into videos. Further, the music companies and platforms widely publicize their license agreements that permit the use of the music on the platforms, but do not publicize the restrictions preventing individuals such as influencers from using that music on the platform despite those agreements.

Second, DSW argues that the music companies have been paid already – both through platform license fees and through the free promotion of their songs in influencer content. The Digital Millenium Copyright Act (DMCA) and platform structures provide mechanisms for the music companies to be compensated even further by claiming ownership of videos that incorporate their music and collecting revenues from those videos, but the music companies have chosen to ignore those statutory mechanisms and sue instead.

Third, DSW notes that some platforms’ terms of service permit their users to repost content that others have posted to the platform. Therefore, it argues, if the music companies post their music (and they do), then other users are licensed to use that music based on the terms of use of the platform.

Fourth, DSW contends that the music companies have badly overreached by including claims against videos targeted to non-U.S. markets and videos that were posted outside the statute of limitations. 

How Can Companies Avoid Being a Target?

For companies watching this and similar litigations unfold, the practical question is how to avoid becoming the next defendant. Perfect protection is unrealistic, but risk can be managed. Companies that can show they made their best efforts to respect the copyrights of others may be successful in limiting damages.

To manage the risk, there are a few simple practices companies can implement. First, while it is difficult to control influencers and the music they use, companies should make sure their influencer agreements require the influencer to secure all rights to music and other third-party content, and shift the risk of copyright infringement liability to the influencer via indemnity (even if the influencer is ultimately judgment-proof). To the extent that an individual influencer may have insurance, a company should seek to be named an additional insured. Companies also should try to negotiate contractual rights to remove videos that contain infringing content.

Second, companies should require their marketing teams to be fluent in the copyright rules applicable to videos, music, and social media (understanding the rules in place on each site and the extent that music offered by the platform can be used). Anyone approving or reposting influencer content should understand that a popular song is almost never “free” – even if the platform’s library appears to offer it at no cost. The rules in this space continue to change and it is important for marketing teams to be trained regularly to keep current with the latest legal developments.

Third, companies should consider regular and frequent review of influencer posts to screen for unlicensed music. Companies should review an influencer’s history before agreeing to work with them.

Conclusion

Courts have not yet issued decisions on the merits in the DSW and similar matters. If any of these cases proceed past summary judgment, they may clarify how far secondary liability can extend in the influencer context. Until then, the safest path for brands is proactive contract drafting, education, and continuous monitoring.