Brands using influencers must rethink media E&O coverage

Warner Music Group entities — including Atlantic Recording Corporation and Warner Chappell Music, Inc. — allege that Crumbl violated copyright law by using tracks such as Dua Lipa’s “Levitating” and Lil Nas X’s “Old Town Road” in promotional content posted by influencers. These videos, published across platforms like TikTok and Instagram, generated significant brand awareness.

They also opened the door to serious copyright liability.

The complaint estimates damages at $23.85 million, roughly $150,000 per infringing work — highlighting the extent to which copyright law can impose strict, high-stakes penalties for even seemingly minor digital marketing missteps. This case underscores the legal and financial complexity of managing influencer content and the urgent need for brands to proactively assess their exposure.

Media Errors and Omissions Coverage: A tailored shield for brands

Media E&O coverage is increasingly essential for brands that leverage influencer marketing, offering protection against a broad range of liabilities arising from content creation and distribution including copyright infringement, defamation, invasion of privacy, and, in limited circumstances, false advertising.

Key considerations include:

• Coverage ccope: Media E&O policies generally respond to claims of copyright infringement, misappropriation, libel/slander, and privacy violations. However, coverage is not automatic; it hinges on detailed underwriting and an understanding of the insured’s marketing and content practices.
• Influencer endorsement variability: Some insurers now offer endorsements specifically addressing influencer content, but not all Media E&O policies are created equal. Brands must ensure that third-party content creators — including TikTok Shop affiliates and less formally contracted influencers — are properly accounted for within the policy structure. Influencer compensation structures (affiliate revenue vs. paid posts), degrees of creative control, and platform-specific risks should all be considered when structuring the policy. In today’s ecosystem, where it’s easier than ever for anyone to become an affiliate with viral reach, the potential for liability spreads rapidly — often faster than internal legal teams can react.
• Platform licensing gaps: It’s a common misconception that music made available through TikTok or Instagram’s in-app libraries is licensed for brand use. In reality, those licenses typically cover personal, non-commercial use only. Once music is used in a promotional context or by paid influencers acting on behalf of a brand, separate commercial sync licenses are required.
• High-value claims: With potential statutory damages reaching eight figures, as seen in Crumbl’s case, a well-structured Media E&O policy can provide essential financial protection against lawsuits stemming from influencer-generated content.
• Tailored coverage: Off-the-shelf policies may not adequately address the unique risk profile of influencer campaigns. Brands should work closely with experienced brokers and underwriters to ensure policy language clearly contemplates influencer-driven content, cross-platform exposure, and third-party music or IP usage. Choice of counsel is another important consideration in crafting a policy. 
  

Relevant legal precedent

Inside the Warner complaint against Crumbl, the plaintiffs draw a direct comparison to UMG Recordings, Inc. v. Vital Pharmaceuticals, Inc. (S.D. Fla. 2022), better known as the Bang Energy case. There, Universal Music successfully sued Bang Energy for using popular copyrighted songs across TikTok in influencer-driven videos promoting its energy drinks. The court rejected Bang’s argument that TikTok’s user license extended to commercial brand use and granted summary judgment for UMG. The case became a foundational warning for how influencer marketing can fall squarely into the realm of unlicensed media production.

Warner’s reference to the Bang litigation suggests a coordinated effort by major music labels to crack down on unauthorized use of sound recordings in influencer content, signaling increased litigation risk for any brand employing similar marketing strategies.

Cautionary tale for today's businesses

The Crumbl and Bang Energy lawsuits serve as cautionary case studies for both brands and insurers. The rapidly evolving landscape of influencer marketing, especially on platforms like TikTok and Instagram, poses significant copyright risks. These risks are amplified by the use of trending audio, fast-moving affiliate programs, and loosely governed content partnerships.

Regardless of whether the claims against Crumbl ultimately succeed, the cost of defending such litigation can be substantial. This reinforces the need for brands to rethink their approach to Media E&O coverage, proactively addressing emerging exposures with policies tailored to today’s digital realities. A well-crafted policy, developed with full transparency between marketing and risk management teams, may be the difference between a viral moment and a multimillion-dollar legal headache.

Interested in learning more and taking a deeper dive? Reach out to Katie Pope, Esq., vice president of Executive Lines at The Liberty Company Insurance Brokers.

Hear more on this topic from Katie Pope, Esq.: With great influence comes great responsibility