By Ananyaa Banerjee and Samridhi Chugh
The rapid growth of short-form content has transformed social media marketing in India. Platforms such as Instagram have become indispensable tools for brands seeking consumer engagement through reels, influencer campaigns and promotional videos. As per 2025 data, almost 80 percent of marketing professionals integrated Facebook and Instagram into their digital marketing campaigns.[1]
However, a multitude of recent legal developments, including the ongoing dispute between Zee Entertainment Enterprises Ltd. and Nykaa, before the Hon’ble Delhi High Court have fuelled critical debates surrounding the various aspects of platform-based music licensing, commercial versus non-commercial use, intermediary liability and the extent to which brands may rely on digital music libraries while creating promotional content. This article will attempt to analyze these aspects from a holistic lens.
Background of the Dispute
On April 3, 2026, Zee Entertainment filed a copyright infringement suit[2] against Nykaa’s parent company, FSN E-Commerce Ventures Ltd., alleging unauthorized use of Zee-owned copyrighted songs in Instagram reels created for brand promotion and advertising purposes. Zee reportedly sought damages of approximately Rs. 2 crores (USD 2,10,626) and identified multiple allegedly infringing reels. Following institution of the suit, Nykaa reportedly took down around 12 links which were flagged by Zee as infringing.
Zee’s primary contention was that it had entered into a licensing agreement with Meta Platforms, Instagram’s parent company, which only permitted personal and non-commercial use of Zee’s music catalogue through Instagram’s music library. According to Zee, Nykaa’s use of the songs in branded promotional content exceeded the scope of the license and therefore constituted copyright infringement. Although the matter is pending adjudication, the dispute is already being viewed as a landmark issue in India’s evolving digital copyright landscape.
Copyright Framework under Indian Law
The dispute is primarily governed by various provisions of the Copyright Act, 1957. The gist of some of the relevant provisions of the Act vis-à-vis the instant matter has been provided below:
- According to Section 2(p), a “musical work” means a “work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken, or performed with music.” It was observed by Hon’ble Delhi High Court in the case of Gramophone Co. Of India Ltd. vs Super Cassette Industries Ltd.[3] that “Musical work is not merely a combination of melody or harmony or either of them; it must necessarily have been printed, reduced to writing, or otherwise graphically produced or reproduced.”
- According to Section 2(ffa), “composer” in relation to a musical work, “means the person who composes the music, regardless of whether he records it in any form of graphical notation.” The Copyright (Amendment) Act, 2012 specifically addresses individuals like lyricists or composers whose original works form part of films or sound recordings, ensuring that the rights to royalties arising from the use of such works in mediums other than films or sound recordings belong to the original creators.
- Section 14 grants copyright owners exclusive rights to reproduce copyrighted works, communicate them to the public, issue copies to the public, commercially exploit the work and authorize others to do the same. The use of copyrighted songs in Instagram reels for product promotion arguably falls within the purview of “communication to the public” and commercial exploitation.
- Under Section 17, the author or lawful assignee is the first owner of copyright. Since Zee owned or controlled rights in the sound recordings, it retained the authority to determine the manner and extent of licensing.
- Section 30 permits copyright owners to grant licenses subject to contractual conditions and limitations. This provision becomes central to the Zee–Meta licensing arrangement because the determination of the scope of rights granted to Meta and subsequently made available to users through Instagram, forms the crux of the entire dispute.
- Section 52 of the Indian Copyright Act, 1957, defines “fair dealing” and provides a closed list of specific acts that do not constitute copyright infringement. Exceptions include private research, criticism/review, reporting current events, and non-commercial educational use. It also permits, under specific conditions, acts like public performances during marriage processions. Since Nykaa had used the copyrighted songs for gaining traction from the promotional Instagram reels for commercial purposes, its use cannot be said to fall under the fair dealing exemption.
- Section 63 of the Indian Copyright Act, 1957, criminalizes the knowing infringement or abetment of copyright infringement. It stipulates imprisonment (6 months to 3 years) and a fine (Rs. 50,000 to Rs. 2 lakh) for violating copyright holders’ rights. However, criminal liability generally requires proof of wilful and deliberate infringement. While Nykaa’s takedown of the reels may indicate acknowledgment of unauthorized usage, whether the conduct satisfies the threshold for criminal prosecution would depend upon evidence of intentional commercial exploitation.
The Licensing Model between Zee and Meta – Scope of Commercial and Non-Commercial Use
Often music library of social media platforms creates the impression that songs available on the platform are freely usable. However, access to music through a platform does not necessarily amount to unrestricted commercial authorization. Brand reels differ significantly from ordinary user-generated content because they help promote products and services, enhance brand visibility, drive consumer engagement and generate indirect commercial benefit. Therefore, the use of music in advertisements generally constitutes commercial exploitation.
The Indian Performing Rights Society (IPRS) specifically mandates that a license must be obtained by anyone who uses musical and literary works in commercials, advertisements or promos “by way of synchronization on television, radio, internet/website or any other medium”. For advertisements on the internet, the licensing fee is Rs. 30,000 (USD 316) per 30-second use of copyrighted music per annum. Further, use of copyrighted music in an advertisement without proper authorization or violation of IPRS’ terms attracts a higher royalty, i.e. the aforesaid standard rate along with an additional fee of at least 50% of the rate, at the discretion of IPRS.[4]
Pertinently, the introduction of the digital music library by Meta for user generated content came with the various guidelines and a specific Music Revenue Sharing Program, clearly barring the use of music in commercial/monetized posts.[5] Additionally, Meta’s Music Guidelines explicitly prohibit the use of copyrighted music for commercial or non-personal purposes unless the user has an appropriate license.[6] The applicability of these guidelines spans across all Meta products, including Facebook and Instagram and their built-in music libraries. Thus, companies are expected to obtain direct licenses from the copyright holders in the music being used in branded content.
It is in the above light that it becomes significant to pay heed to the layered licensing arrangement between Meta and Zee, which is at the fulcrum of the instant dispute, as is the case on various other social media platforms today. The arrangement essentially involved:
- Zee Entertainment as the copyright owner;
- Meta/Instagram as the platform licensee; and
- Nykaa as the end-user brand utilizing the music.
In such digital platform licensing arrangements, copyright owners generally permit platforms to host music libraries and allow users to incorporate songs into user-generated content (“UGC”). However, these licenses frequently draw a clear line distinguishing between a) personal and non-commercial use, and b) commercial advertising and branded content usage.
Thus, a crucial legal question arises: Did Meta possess authority to permit commercial exploitation of Zee’s music by business entities like Nykaa?
As per a settled contractual principle – Nemo dat quo non habet – one cannot transfer what one does not own. Therefore, since the terms of the licensing arrangement only cover non-commercial use, Meta cannot legally extend broader commercial rights to users.
The question of synchronization rights (“sync rights”) also becomes significant in the above light. Whenever music is paired with visual content such as advertising reels, separate synchronization permissions may be required. Zee may therefore argue that Nykaa commercially synchronized copyrighted songs with promotional video content without authorization.
Indian courts have increasingly begun to recognize that commercial entities are expected to conduct due diligence before using copyrighted material for advertising or promotional activities. In Civic Chandran v. Ammini Amma[7] and Super Cassettes v. Hamar Television[8], the courts have conclusively held that any defense of fair dealing gets defeated if the copyright owner’s work is commercially exploited.
Terms of Use and Constructive Knowledge
Another important aspect concerns Instagram’s policies and terms of use. Meta’s branded-content policies generally caution users that commercial use of music may require additional permissions. Zee could therefore argue that Nykaa possessed constructive knowledge regarding licensing restrictions and knowingly used copyrighted music despite those limitations. This may weaken any defense based on innocent or accidental infringement.
Scope of De Minimis Defense
A typical defense that entities such as Nykaa may be assumed to take in the matters of copyright infringement, especially in respect of short-form content is hinged on the latin maxim – de minimum non curat lex (“the law does not concern itself with trifles”), widely known as the de minimis defense. This argument is generally used to dismiss lawsuits where the copied portion is minuscule and causes no significant harm to the copyright owner.
In the context of 15-30 seconds short reels on Instagram, Nykaa may likely argue that usage of 15-second clips for brand promotion falls within the de minimis exception to instances of infringement. The legitimacy of such an argument would depend on whether the use of short, licensed musical snippets in commercial promotional reels constitutes trivial, non-infringing use, or significant commercial exploitation.
The Hon’ble Delhi High Court in a significant ruling in India TV Independent News Service Pvt. Ltd. v Yashraj Films Pvt. Ltd.[9] comprehensively dived into the scope of de minimis acts and their consequences, enlisting five factors to be considered by courts in applying the exception:
- The size and type of the harm
- The cost of adjudication
- The purpose of the violated legal obligation
- The effect on the legal rights of third parties
- The intent of the wrongdoer
Further, in the case of Shemaroo Entertainment Ltd vs News Nation Network Pvt Ltd.[10], the Hon’ble Bombay High Court has held that, “It is not only the duration of the exploitation which matters. There is a qualitative element as well in deciding both the aspects of fair dealing and de minimis. The length and extent of the copyrighted work, infringement of which is complained of, is undoubtedly of vital importance. However, it could not be reduced to just a quantitative test of minute and seconds dehors the qualitative aspect. The submission on behalf of the defendant that the exploitation was hardly for a minute, therefore, does not carry the matter thorough.”
Therefore, in the context of short‑form reels, the defense would only succeed if the copied material is genuinely insignificant both quantitatively and qualitatively, and does not interfere with the copyright owner’s economic or moral rights. In the instant matter, because the licensed music was allegedly used by Nykaa to generate commercial engagement and promote products rather than as incidental, non-commercial background audio, courts may be unlikely to accept that the use was too trivial to warrant legal action, even if the reels were only a few seconds long.
Intermediary Liability and Section 79 of the Information Technology Act
Reportedly, on May 19, Nykaa filed for the inclusion of Meta as a party to the instant lawsuit, claiming that only the intermediary can determine whether the use of music on Instagram reels breached any terms of license.[11] This further leads to the broader question of liability of intermediaries such as Meta, YouTube, X, among others, in cases involving copyright infringement on digital platforms.
As per Section 51(a)(ii) of the Copyright Act, intermediaries may face ‘contributory liability’ if they knowingly host infringing content, including the unauthorized use of copyrighted music or visuals in reels or memes. However, under Section 79 of the Information Technology (IT) Act, 2000, intermediaries receive conditional safe-harbour protection if they act as neutral intermediaries, exercise due diligence and remove unlawful content after obtaining knowledge of infringement.
This was also clarified in MySpace Inc. v. Super Cassettes Industries Ltd.,[12] wherein the Hon’ble Delhi High Court ruled that intermediaries are protected unless they fail to remove the infringing content that they possessed knowledge of and removed the same within 36 hours of its receiving a notice from a content owner. The Court’s clarification essentially aids intermediaries in situations where their knowledge of the copyright material being infringed is tested. The analysis is pertinent in the present case as it raises questions about whether Instagram was aware of the music being used by Nykka through their content ID system and whether they are liable with Nykka or not for infringing Zee’s rights over the musical works they own or not. [13]
Since the flagged reels were reportedly removed after the filing of the suit, Meta may rely upon safe-harbour protection. However, questions remain as to whether platforms sufficiently distinguish commercial and non-commercial usage rights, whether platform interfaces inadvertently facilitate infringement, and the extent of responsibility platforms bear for copyrighted content embedded within native editing tools.
Notably, social media platforms rely on automated moderation to manage copyright issues, but the EU’s 2019 Article 17 of the Digital Single Market Directive[14] raised the bar. Without authorization from rights holders, online content-sharing services must meet strict conditions to avoid direct liability. This shift has rendered platforms with carry greater responsibility for user-generated content, a sharp departure from their earlier immunity.
Even before the directive, platforms had adopted copyright moderation systems to handle notice-and-takedown disputes, often claiming “non-media” status to sidestep accountability. The directive changed that, pushing creators toward self-censorship and reshaping moderation practices. European courts have since emphasized balancing enforcement with user rights. For India, the directive offers a model: stronger transparency, accountability, and curbs on unlicensed works could improve regulation and protect both creators and users.
Conclusion
The instant matter closely mirrors the dispute in the Sony Music Entertainment v. Myntra[15], wherein Sony initiated proceedings against Myntra in 2025 for using copyrighted songs in promotional content without its authorization. The allegedly infringing content was subsequently removed. Similarly, Zee has recently pursued actions involving unauthorized usage of its music catalogue in other commercial contexts as well.[16]
These disputes collectively demonstrate the increasing willingness of copyright owners to aggressively enforce music rights in India’s rapidly expanding digital advertising ecosystem. The instant case illustrates that merely accessing music through Instagram’s library does not automatically confer unrestricted commercial rights upon brands and advertisers. More importantly, the dispute highlights the complex licensing chain operating between copyright owners and digital platforms and what it eventually implies for content creators in the broad scheme of things.
As reels, influencer marketing, and branded short-form videos continue to dominate digital advertising, the outcome of the dispute may substantially influence the future of music licensing and copyright enforcement in India’s social media ecosystem. Users, especially Nykka herein and other popular brands/e-commerce websites, should be wary of any pre-existing policies and must ensure to look at the copyright policy of each social media platform before using copyrighted material especially from in-built music libraries. Additionally, the difference between commercial and non-commercial use that springs out from the Nykka v. Zee case is also pertinent which could help establish the boundaries that brands and/or e-commerce websites should maintain in the era of pre-existing digital copyright policies. [17]
[1] https://www.statista.com/statistics/259379/social-media-platforms-used-by-marketers-worldwide/
[3] 1995IIAD(DELHI)905
[4] https://iprs.org/wp-content/uploads/2025/04/EGM-Approved-Existing-Tariff-SNC-20250404.pdf
[6] https://www.facebook.com/legal/music_guidelines
[7] 1996 SCC OnLine Ker 63
[8] 2010 SCC OnLine Del 2086
[9] AIR 2013 (NOC) 315 (DEL.)
[10] COMMERCIAL IP SUIT (L) NO.434 OF 2021
[12] FAO(OS) 540/2011
[13] https://ssrana.in/articles/navigating-the-copyright-issues-on-social-media-platforms/
[14] https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1807
[15] COMMERCIAL IP SUIT (LODGING) NO. 9156 OF 2025
[17] https://ssrana.in/articles/navigating-the-copyright-issues-on-social-media-platforms/