DSW Faces Tough Odds in Suit Testing Social Media Music Rules

Footwear retailer DSW has a difficult task in its battle with record label behemoths seeking to reset copyright rules for businesses using music on social media.

DSW Shoe Warehouse Inc., its parent company Designer Brands Inc., and DBI subsidiary Topo Athletic LLC filed a declaratory judgment suit in Ohio federal court last week accusing Sony Music Entertainment and UMG Recordings Inc. of unfairly threatening copyright litigation over music used in social media posts. The brands argued platforms such as Instagram and TikTok allow free use of licensed music from their libraries and businesses aren’t carved out as a separate type of user.

The brands face slim odds of winning the suit and upending the status quo that music must be licensed specifically for commercial purposes, according to copyright and music attorneys, who said the complaint cites press releases rather than licensing contracts and omits key provisions from the platforms’ terms of service.

The retailers’ claim they shouldn’t have to separately license music for social media advertising might make sense “normatively,” but it’s a “legally tenuous argument,” said Daniel Lifschitz from Gipson Hoffman & Pancione.

Their argument is one of “implicit inclusion,” Lifschitz said. DSW’s position that labels’ announcements of licensing deals with social media platforms implied the music would be available for all users for all purposes “stretches the argument too far.”

Joseph Fishman, a music law professor at Vanderbilt University, said he was “surprised” companies still make the “mistake” of using music for social media ads without licenses.

Over the past year, hotel chain Marriott, cookie franchise Crumbl, restaurant chain Chili’s, and the University of Southern California have been accused of using copyrighted music in social media posts without permission in cases that either remain active or were voluntarily dismissed. UMG and Sony have won on the issue before, with two Florida federal judges ruling in their favor against Bang Energy in 2022.

“There is so much that is really complicated about music licensing,” Fishman said. “This is not one of those things.”

Terms of Use

Labels including Warner Music Group and Atlantic Recording Corp. accused DBI of infringement in a May lawsuit in the US District Court for the Southern District of Ohio. That suit also said DBI was liable of contributory infringement through influencers who promoted DSW and Topo in paid-partnership posts.

DBI went on the offensive against UMG and Sony, saying they sent “unjustified” letters threatening litigation and seeking judgments of noninfringement.

“The power to assert a copyright claim, even unlawfully, is a cudgel that can be used to force unjustified settlement payments from innocent users of social media platforms, including the DBI Entities, who are only doing what the platforms permit and what the Labels have encouraged,” DBI’s complaint said.

The retailers focused on press releases announcing licensing deals with platforms to make their case, but that’s not the language of the actual contract, Fishman said.

Instagram’s music guidelines prohibit use of music for “commercial or non-personal purposes” without the “appropriate licenses.” TikTok’s similarly state its sounds are available to users “so long as the videos are only for personal entertainment and non-commercial purposes.” TikTok has a commercial music library that’s made available for brands and businesses. The platform specifies in its Commercial Music Library Terms that “no rights are granted to make Commercial Uses of any other sounds (music and non-music) on or through TikTok.”

The retailers’ complaint doesn’t quote those parts of the terms but says the policies “do not distinguish between user accounts associated with individuals, businesses, or other groups or entities when discussing the incorporation of music into a post.”

“Whether it was convenient omission—it’s certainly an omission,” Fishman said. “I don’t know how convenient it’s going to be as soon as Sony files its answer.”

DBI’s attorneys didn’t respond to requests for comment for this story. UMG and Sony also didn’t comment.

Licensing Chain

There are several layers between DSW, Topo and the music they use, Lifschitz said. Labels own the copyrights to the sound recordings, which are licensed to social media platforms, who then create music libraries and set boundaries around how they can be used.

Labels often sue companies they allege flout copyright law, even though the platforms are the ones setting the terms of use for the licensed content. Fishman said it makes sense for labels to sue for infringement rather than platforms suing for breach of contract because the copyright owner is “really the aggrieved party.”

“The reason that the terms of service that the platform sets say what they say is because the platform is trying to avoid offering a license that it does not have the rights to offer,” he said.

Even if the labels didn’t differentiate between individual users and businesses in licensing contracts with social media companies, the platforms’ terms of use clearly demarcate commercial uses of music as a separate category, Fishman said.

Platforms could be roped into these types of lawsuits from labels as co-defendants, with claims they’re secondarily liable for infringement by offering “misleading” terms of use, said Kristelia Garcia, a music law professor at Georgetown University.

What DSW could really push here is “whether they’re being misled by the language that says, ‘Hey, come use our platform,’” she added.

Lifschitz, however, was skeptical of the retailers’ argument. He compared it to a TV station taking out licenses to broadcast certain music, and advertisers claiming that gave them the ability to forego a license for a commercial.

“People in marketing departments need to stop thinking of social media campaigns as just making a post on social media and more like commercials,” Fishman said. “It is well ingrained that if you were to include a piece of music in a commercial, you need to clear the rights for that music, and it is apparently still new to some people that you need to do the same thing if your commercial just happens to be on a social media platform.”

The cases are: Designer Brands Inc. v. Sony Music Entertainment, S.D. Ohio, Docket No. 2:25-cv-00765 and Atlantic Recording Corporation v. Designer Brands Inc., S.D. Ohio, Docket No. 2:25-cv-00479