1. Introduction:
Scroll through any major brand’s Instagram page, and you will hear it: a trending audio clip playing under a product shot, a Bollywood track soundtracking a skincare tutorial, or a chart‑topping song lending energy to a D2C brand’s latest reel. What appears harmless is, at scale, a potential copyright infringement machine embedded in digital marketing practice. A recent lawsuit filed before the Delhi High Court by Zee Entertainment Enterprises Ltd. against Nykaa Fashion Ltd. has, for the first time, placed this industry‑wide assumption under judicial scrutiny. The question is not whether Zee’s catalogue is protected by copyright, which is indisputable, but whether the licence architecture that Nykaa relied upon actually covered what Nykaa did with it.
It is less of a classic infringement dispute, and more of a transactional question about how rights travel through platform ecosystems, and the answer to which will reshape how every brand in India runs its social‑media advertising. This blog argues that this dispute exposes a systemic gap in India’s copyright framework for social‑media platforms, where commercial advertising practices have outpaced the law. It uses the dispute to explore the platform licensing chain, test brand defences under Indian and comparative law, and propose a compliance and policy framework for brands, platforms, and regulators.
2. The Three‑Party Problem:
To see why the case matters, one must unpack the licensing chain that produced it. Zee holds copyright in a catalogue of sound recordings and underlying musical works. Like many music right‑holders, Zee allegedly entered into a blanket licensing agreement with Meta Platforms (Instagram’s parent company) to make this music available through Instagram’s built‑in library.
According to Zee, the critical limitation is that the Zee–Meta licence is confined to personal and non‑commercial use and does not extend to commercial deployment by brand accounts. Zee alleges that Nykaa, a publicly listed beauty and fashion platform with a substantial advertising operation, used several songs from Zee’s repertoire as background music in promotional reels designed to sell products, thus placing the use firmly in the commercial category.
This creates a three‑party structure: Zee –– Meta –– the downstream user (Nykaa). Nykaa’s implicit defence is that it used music from a library Meta was authorised to offer and that Meta’s licence covered such use.
3. Gaps in the Indian Legal Framework:
Indian copyright law provides the basic statutory scaffolding but leaves several commercially significant questions open in the specific context of platform‑mediated social‑media advertising. The analysis focuses on two planes most relevant to this dispute: sublicensing, and the dual rights implicated by a single act of synchronisation.
The sublicensing, as per the Copyright Act, 1957 (“the Act”) allows an owner to licence in writing by him or by his duly authorised agent. A platform licensee such as Meta, having only a personal‑use licence from Zee, does not automatically acquire agency status or the power to extend that licence to downstream commercial users: absent an express contractual right to sublicense, the principle of nemo dat quod non habet (one cannot transfer what one does not have) bars Meta from conferring commercial sync rights on brands like Nykaa.
On synchronization, incorporating a song into a branded reel implicates two distinct sets of rights vested in potentially separate entities: the ‘musical work’ (composition and lyrics) under Section 14(a), and the ‘sound recording’ under Section 14(e). A promotional reel qualifies as a ‘cinematograph film’ under Section 2(f) of the Act, and making it available publicly on Instagram engages both rights. As the Supreme Court confirmed in International Confederation of Societies of Authors and Composers v. Aditya Pandey, these rights are independent, and a licence from the sound‑recording owner does not automatically clear the underlying composition.
The Act, however, does not define “commercial use” in a social‑media context, nor does it address how the platform-level licences for personal use should interact with brand-side monetisation and influencer arrangements.
4. Nykaa’s Possible Defences: Global Liability Doctrines and Brand Defences:
The present litigation mirrors a globally coordinated enforcement strategy by major record labels against digital brands. When confronted with strict-liability copyright claims, brands typically invoke equitable defences like ‘implied consent’ or de minimis usage. However, courts in several jurisdictions have been sceptical of these arguments, especially where the use is clearly commercial.
Reliance on the doctrine of ‘implied consent’, which labels tacitly authorize commercial use by licensing music to platforms, fails because copyright infringement operates on strict liability, and platform terms explicitly forbid commercial exploitation. Similarly, the de minimis defense routinely fails in commercial contexts if the usage captures the qualitative ‘heart’ of the musical work to drive engagement.
Brands also frequently attempt to fit promotional reels into the ‘fair dealing’ exception. However, a commercial reel designed to drive e-commerce fundamentally lacks the bona-fide public interest purposes envisioned by Section 52 of the Copyright Act.
These defences, however, must be tested against the deeper jurisprudence of fair dealing and against the statutory requirement of express authorisation for sublicensing.
The financial perils of this digital licensing crisis are heavy. In Sony Music v. Gymshark, record labels alleged over 44 million dollars in damages against a fitness brand that built a ‘social‑first’ strategy on unlicensed tracks, signalling the scale of exposure brands can face when they treat platform audio as free advertising fuel. Furthermore, UMG Recordings v. Vital Pharmaceuticals recognised that brands can be held liable for influencer‑posted content where they exercise control over campaigns and derive direct commercial benefit.
Thus, Indian entities utilizing trending audio for algorithmic engagement are extracting actionable economic value from copyrighted assets, rendering standard digital marketing defences doctrinally defunct.
5. The Industry Implications:
Every major Indian D2C brand, fashion retailer, beauty company, food‑and‑beverage chain, fintech startup, and consumer‑electronics brand now relies on Instagram reels with background music drawn from the platform’s audio library. The practice is so universal that it has become invisible, turning what looks like a creative tool into the backbone of a large advertising economy.
This is not just a question of individual infringement but a broader policy concern: India’s influencer and social‑commerce markets appear to rest on licensing assumptions that the law does not clearly support. Instagram’s interface reinforces this by presenting music as a creative tool, without clearly distinguishing between the scope of any licence available to individual users and any licence available to commercial brands.
The influencer‑marketing sector sits directly in this gap. Branded content contracts between companies and influencers meticulously specify deliverables, hashtags, and disclosure requirements, but almost never address music clearance. An influencer posting a branded reel using a platform audio track exemplifies the structural problem: the brand cannot rely on the influencer’s purported personal licence because the brand is the commercial beneficiary, and the influencer cannot rely on a personal‑use licence because the post is commercial. Neither has cleared the sound‑recording rights under Section 14(e) or the composition rights under Section 14(a). This is a systemic compliance failure in an industry worth several thousand crore rupees annually.
6. Towards a Compliance and Policy Framework:
The resolution of the present dispute demands an immediate, multi-stakeholder framework to stabilize the social commerce ecosystem.
For brands, they must decouple their strategies from the assumption of ‘free’ platform music. Corporate entities should mandate the use of designated ‘business’ accounts and restrict audio selections exclusively to platforms’ Commercial Music Libraries (“CML”), which contain pre-cleared tracks. If a mainstream track is required, brands must negotiate direct master and synchronization clearances, or creatively commission custom cover versions. Furthermore, influencer contracts must be overhauled to include explicit indemnification clauses, mandating that creators either use CML tracks or provide written proof of sync and master licenses for sponsored content.
For platforms, the sustainable long-term solution is the introduction of commercial licensing tiers. YouTube’s Content ID system, and its paid licensing integration for creators, offer a partial model. Platforms currently utilize a frictionless user interface that shifts legal compliance downstream onto brands, protected by ‘safe harbour’ provisions under Section 79 of the IT Act. To support sustainable commerce, platforms must bridge this gap by negotiating tiered blanket licenses that specifically cover Small and Medium Sized (“SME”) advertising. Implementing a commercially cleared, micro-transactional music library for brands would align the platform interface with legal reality.
For legislature and copyright office, the immediate need is the regulatory clarity on; (i) the statutory definition or guidelines as to what constitutes “commercial use” in digital social media contexts; and (ii) an explicit framework governing sublicensing through platform intermediaries. India can draw from debates around the Article 17 of the EU Copyright Directive, which increases platform responsibility for user‑uploaded content, even if it does not adopt an identical model. This could take the form of Copyright Office guidelines, targeted amendments to the 2012 framework, or self‑regulatory codes for platform‑mediated advertising.
7. Conclusion:
The Zee v. Nykaa dispute exposes the tension between platform‑level music licences, the dual structure of music rights, and the undefined boundary between personal and commercial use in India’s social‑media ecosystem.
By analysing the statutory mechanics of the Indian Copyright Act alongside the aggressive, globally coordinated enforcement actions witnessed in precedent-setting cases, it becomes unequivocally evident that the legal grace period for digital brands has expired. The music industry is no longer tolerating the social media-first strategy as an excuse for copyright evasion. Furthermore, downstream defences such as implied consent, de minimis usage, and fair dealing are structurally incapable of shielding corporate entities from the strict liabilities associated with unauthorized commercial synchronization. A brand reel is, functionally and legally, an advertisement, and it must be licensed accordingly.
The operational burden rests entirely on commercial entities to mature their intellectual property compliance protocols. Brands that build ‘social‑first’ advertising strategies around trending audio will need to invest in clearer licensing workflows and contract design if they wish to avoid the kind of exposure seen in foreign litigation. Platforms, in turn, will have to design interfaces and licensing architectures that reflect the legal distinction between personal expression and commercial communication, rather than blurring it.
Simultaneously, a sustainable future requires social media platforms and national legislators to collaborate. The tech sector must engineer modern, tiered licensing architectures that facilitate authorized, micro-transactional commercial use directly within the app interface. The Delhi High Court’s eventual ruling will undoubtedly serve as a critical benchmark. It provides an opportunity not only to resolve an individual conflict, but also to signal how Indian copyright law should adapt to platform‑mediated advertising, and to prompt a broader conversation between brands, platforms, and regulators on what a compliant, scalable licensing model should look like.
(This post has been authored by Shubham Tunwal, 4th year student at National Law Institute University, Bhopal.)
CITE AS: Shubham Tunwal, ‘The Invisible License: What Zee v. Nykaa Reveals About India’s Social Media Copyright Gap’ (The Contemporary Law Forum, 09 July 2026)<https://tclf.in/2026/07/08/the-invisible-license-what-zee-v-nykaa-reveals-about-indias-social-media-copyright-gap/> date of access.