If an influencer creates a TikTok promoting a brand, using music that’s not in TikTok’s commercial library, then that influencer risks committing copyright infringement unless they have a license from the rights owner.
And the brand and any ad agency involved in the campaign can be liable for the infringement too.
That might seem surprising—it’s extremely common to see popular songs in the background of influencer content.
But just because everyone is doing it doesn’t mean it’s allowed.
Sony Music’s recent lawsuit against Gymshark is just one example of how this problem can rear its head.
Sony sued Gymshark over hundreds of TikToks and IG videos that “include sound recordings featuring such chart-topping and award-winning artists as Beyoncé, Britney Spears, A$AP Rocky, and Calvin Harris.”
Sony’s complaint lays out how Gymshark pays influencers to create videos wearing and promoting Gymshark products and including popular songs.
Sony points to the IG and TikTok terms of service to support the infringement theory:
IG’s TOS says: “Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.”
TikTok’s says “NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE MADE AVAILABLE FROM OR THROUGH THE SERVICE.”
Sony specifically alleges the “third-party influencer who created Gymshark videos have likewise infringed Plaintiffs’ copyrights” and that Gymshark is liable for contributing to that infringement.
So what the lesson from this?
If influencers have the creative freedom to pick sounds for their content, they should clear those sounds with the brand before posting.
The obligation to clear sound choice before posting is something that can and should be addressed by the brand/agency in the influencer agreement.
And if you’re the agency or the brand, claiming you didn’t know about the music or that you needed to clear rights won’t help you much from a legal perspective.
Gymshark has until January 25 to respond to the lawsuit, and it has told the court it plans to move to dismiss.
I’ll provide updates here as the case progresses.