Who is liable when an influencer uses unlicensed music, the brand or the creator?

When an influencer posts an ad with an unlicensed song, the honest answer to "who is liable" is often "both, in different ways." The creator is the direct user of the music. The brand that commissioned, briefed, or benefited from the post can face exposure of its own, and can also become a direct user the instant it reposts. Framing it as a choice between the two is the mistake, because a rights holder does not have to choose.

The reframe: liability is a chain, not a coin flip. The interesting question is not whose fault it is in the abstract. It is which link a rights holder reaches for, and the answer is almost always the one attached to a balance sheet.

The chain, link by link

• The creator used the track. They are the most direct infringer, and also frequently the least able to pay a serious claim.
• The influencer agency that placed the campaign may share responsibility depending on its role and contracts.
• The brand commissioned the content and benefits commercially from it. It is the deepest pocket and the reputational target, and it becomes a direct infringer the moment the post is reshared to a brand-owned channel.
• The platform has its own safe-harbor protections and is generally not the target of a commercial claim against a brand.

A rights holder does not sue the person most at fault. It pursues the party most able to make it whole.

Why the indemnity clause is weaker than it reads

Most influencer contracts push music clearance onto the creator and add an indemnity, the creator agrees to cover the brand if a claim arises. On paper the brand is protected. In practice an indemnity is only worth the assets behind it. An individual creator served with a statutory damages claim they cannot pay leaves the brand with a clause it cannot collect on and a claim it still has to resolve.

Indemnities are worth having. They are not worth relying on as your only control.

What actually reduces the risk

• Specify cleared music in the brief, and make a compliant option the path of least resistance.
• Keep the indemnity, but pair it with verification rather than treating it as the whole defense.
• Get visibility into what your creators actually posted, not just what the contract said they would do.

This is general information, not legal advice, and the specifics vary by jurisdiction and contract. Treat it as a prompt to review your influencer terms with counsel.

MatchTune, a music-usage compliance audit for brands, identifies the music across your owned and influencer-tied posts and attributes each exposure to the brand and campaign behind it, so the liability conversation starts from what actually happened rather than what the contract assumed. Related reading: the hidden influencer risk brands cannot ignore.