Is the agency liable for music in client content?
Short answer
It can be. Labels usually sue the brand, because the content promotes the brand and the brand has the money. But US copyright law has ways to reach anyone who made, copied or materially helped the infringement, and an agency that chose the song, edited it in and posted or ran the ads is close to the act. Even when the agency isn't sued, the client will often turn to the agency for answers, and sometimes for compensation.
Who gets sued first
In the label lawsuits over social posts so far, the defendant has been the brand: Marriott, Crumbl, DSW, Quince, Kroger, PacSun and others. That makes sense. The posts sell the brand's products, the brand benefits, and the brand can pay. But that doesn't mean the agency is safe. It usually means the agency is the next phone call.
How liability can reach an agency
This is general information, not advice on any specific case. US copyright law has several routes:
- Direct infringement. Whoever actually copies, edits in or publicly shows the work. An agency that picks a hit song, edits it into a video and posts it from the client's account is doing the copying.
- Contributory infringement. Knowing about infringement and materially contributing to it. An agency that briefs creators to use trending sounds, or keeps boosting posts after being told the music isn't cleared, is in this territory.
- Vicarious infringement. Having the right and ability to control the infringing activity, and a direct financial benefit from it. Agencies paid per post or on performance may fit this pattern more than they'd like.
Courts have applied these theories to companies around the infringer for decades. Advertising agencies have been named in music copyright suits over ads before. Whether a specific agency is liable depends on the facts, but "we only made it for the client" isn't an automatic shield.
The practical risk: your client's lawyer
Even if a label never names your agency, the client gets the letter, calls their lawyer, and the lawyer asks: who made these posts, who chose the music, and what does our contract with them say? If your master services agreement has the agency warranting that the content doesn't infringe, and indemnifying the client if it does, the agency can end up paying even without being sued.
That's the position many creator and social agencies found themselves in when label enforcement started. The agency made hundreds of posts over two years, the music was "what everyone used", and nobody had a record of what was checked.
How agencies protect themselves
- Set a music policy and put it in writing. Which libraries and sources you use, what you never use, and who approves exceptions. Template here.
- Get the contract right. Be clear about who is responsible for music licensing, especially for music the client asks for. Avoid unlimited warranties that cover choices you don't control, like client-supplied tracks or creator audio.
- Pass the rule to creators. Put a music clause in every creator agreement you sign on the client's behalf.
- Check before delivery and before boosting. A dated check record is the strongest evidence that the agency took care.
- Fix the back catalog. If you've been posting for clients for years, audit the old posts now, before someone else does.
Questions to ask about your current client contracts
- Does the agency warrant that all content is non-infringing, with no carve-out for client-supplied or creator-chosen material?
- Is the indemnity capped, or unlimited?
- Who is named as responsible for licensing music, stock footage and talent?
- Does the client approve posts before they go live? Approval doesn't shift liability on its own, but it's part of the picture.
- Who decides what gets boosted, and whose ad account does the spend run through?
If you don't like the answers, renewal time is the moment to fix them. Most clients accept a clear split once it's explained: the agency follows an agreed music policy and checks its work; the client takes responsibility for music it specifically requests or supplies.
Turning it into a service
Agencies that get ahead of this have something to sell. Clients are reading about these lawsuits and asking their agencies whether they're exposed. "We check every post before it goes out, and here's the independent record" is a strong answer in a pitch, and an easy upsell to existing retainers. How agencies work with OKtoRun.
A quick scenario
A TikTok Shop agency runs content for eight beauty brands, about 300 posts a month, plus affiliate Spark Ads. One client gets a demand letter listing 40 songs. The client's lawyer points to the agency's contract, which says the agency warrants all content is non-infringing. The agency's team used trending sounds because clients wanted reach. There's no record of any check. The agency ends up contributing to the settlement and loses the client. Two of its other clients ask for an audit the same week.
Running content for clients? We check client accounts and creator posts for music and expired rights, with a report you can share. First check from $500 for up to 100 posts, free if there's nothing to fix. Ask about agency pricing.
General information, not legal advice. Liability depends on the facts and your contracts; talk to a lawyer.
Common questions
Can an agency be sued for music in a client's posts?
It can be. Copyright law can reach whoever copied the music and, in some cases, those who knowingly contributed to or controlled the infringement.
Why do labels usually sue the brand?
The content promotes the brand, the brand benefits from it, and the brand is usually best able to pay.
Does our client contract matter?
A great deal. Warranties and indemnities can make the agency pay even if it's never named in a lawsuit.
What if the client asked for the song?
Document it, and make sure your contract says who is responsible for licensing music the client requests.
How can an agency reduce its risk?
A written music policy, creator contract clauses, checks before delivery and boosting, and an audit of past posts.
Part of: Creator and affiliate rights
Related guides
General information, not legal advice. Platform rules and licenses change; check the current terms or ask your lawyer about your situation. Lawsuit figures are as reported and represent claims, not findings, unless noted.