Summary: Companies increasingly use Instagram reels to promote products and services, often relying on music available on the platform without charge. However, when businesses or legal entities use such music for advertising or promotional purposes, it constitutes commercial use. Music made freely available on Instagram can be used only by personal or creator accounts, not for commercial promotions. Using such music without permission or licence from the copyright owner amounts to unauthorised use and can attract liability for copyright infringement under the Copyright Act, 1957, which prescribes imprisonment and monetary penalties. Companies engaging creative agencies remain exposed if agencies use unlicensed music, especially where no formal agreements exist. Although companies may seek indemnity from agencies or plead innocent infringement to limit remedies to injunctions, the burden of proof lies on them. The key message is that businesses must ensure proper licensing and contractual safeguards when using music in Instagram promotions.
1. Many companies / legal entities promote their products or services on their Instagram page, either through in-house or through any agency, using Instagram music which is available free of charge.
2. When Companies / legal entities use such free music for promotion of its product or service in its Instagram reel, then this amounts to commercial use of music.
3. Such music, though available free does not absolve companies / legal entities from obtaining permission or license from the copyright owners of such music.
4. The free use of such music can be availed only for ‘personal’ or creator accounts of Instagram users and not for any commercial purposes i.e., not for any advertisement or promotion of any product.
5. Such permission if not obtained by companies / legal entities amounts to unauthorized use of such music and becomes liable for offence of infringement of copyright u/s 63 of Copyright Act, 1957 and thus must obtain license of such Instagram music from the owner of the copyright of such music to advertise or promote their products on Instagram.
6. Section 63 of Copyright Act, 1957 provides for imprisonment for a term of not less than 6 months which may extend to 3 years and with fine which shall not be less than Rs.50,000/- but which may extend to Rs.2,00,000/-.
7. When the Companies hire any creative agencies to design their advertisement or promotional products reels, then the Companies should ensure that such agencies use copyrighted music only or obtain permission from the copyright owner of such music. The Companies, in their agreement should provide for such agencies to use only copyrighted music and no unauthorized use of any music for that matter in the reel.
8. At times, it has been observed that Companies do not enter into any agreement with such creative agencies thus leaving the Companies fully exposed to copyright infringement under Copyright Act, 1957. Even in such a case, Companies can take shelter of principal agent relationship with such agency and file an indemnity claim on such creative agencies. Companies also set-off amounts paid towards infringement claims from the amounts due or payable to the creative agencies.
9. The Companies here can also play an innocent infringer card here under Section 55 of Copyright Act, 1957 if it can prove that they were not aware and had no reasonable ground to believe that copyright existed in such music. In such cases, the claimant will only be entitled to injunction (here taking down the video) and no damages. A word of caution here. It is important to note here that in such cases, the burden of proof lies entirely on the Company (here defendant in this case).
Thus Companies / legal entities using Instagram as their medium to advertise or promote their product by Instagram reels with music must take necessary caution by using only copyrighted music in their commercial reels.
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