Between Trends and Compliance: Managing Intellectual Property Risks in Social Media Marketing

Adolf M Panggabean

Despite its perceived free nature, the social media universe is not a lawless space. Content such as music, images, and visual elements remains protected by intellectual property (“IP”) rights, such as copyright and trademark laws. IP infringement can occur not only when an entire work is used without permission but also when even a small portion is incorporated into a newly created work. Whether a creator directly uses existing works or unknowingly embeds protected elements in their content, unauthorized use may violate the creator’s economic and moral rights. By understanding the relevant legal framework and ensuring compliance, businesses can protect their commercial integrity while minimizing the risk of IP disputes. This article examines the importance of understanding and mitigating legal risks for businesses, content creators, and influencers when utilizing content on social media platforms. 

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A. The Social Media Universe and Legal Compliance Challenges

Advertising and marketing activities used to be predominantly carried out offline, where IP protection is primarily applied to physical platforms. However, with the continued growth of social media, businesses, brands, and influencers are now building their presence and promoting their products both offline and online through both real-world interactions and across digital platforms. This vast and ever-expanding digital space has become a key arena for businesses and individuals to engage with their audiences through diverse content formats such as music, images, videos, and illustrations. This is what we now refer to as the social media universe, a digital landscape where creative content is continuously created, shared, and commercialized. 

In this landscape, IP protection is no longer confined to offline use but must also extend to digital environment, safeguarding creators’ rights wherever content is shared and commercialized. IP protection also applies not only to the use of existing works but also to the creation of new content. A single piece of content may contain various creative elements such as music, images, or designs that are protected by IP rights. Legal risks arise whether a protected work is used in whole or only in part, and whether it is reused as-is or embedded in newly created content. The fact that the content is newly created does not remove the business’s from the obligation to obtain authorization for any protected elements. Unauthorized use, even in small portions and particularly for commercial purposes, may lead to copyright or trademark infringement, which includes both moral and economic rights, and expose businesses to legal and reputational risks. 

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B. Why Social Media Is Not Beyond Legal Boundaries

Many businesses, creators, and social media users still mistakenly believe that if content (be it a music, a song or a moving image) is publicly available, or is made available on social media platforms such as TikTok, YouTube, Google Images, or other digital platforms,  it is free to use without permission. This misconception is particularly risky when the content or any parts of it are used for commercial purposes. 

In principle, content uploaded to social media remains protected under Indonesia’s broader IP framework, and so are all IP rights used in the creation of that content. While various IP laws may apply to the content depending on its nature, including any intellectual property rights used in the creation of the content, the two most relevant areas in the social media context, where the risk of infringement frequently arises, are copyright and trademark. In Indonesia, these are governed by Law Number 28 of 2014 on Copyright (“Copyright Law”) and Law Number 20 of 2016 on Trademarks and Geographical Indications, as amended by Government Regulation Number 22 of 2022 on Job Creation (“Trademark Law”).  

Copyright protects creative expressions in audio, visual, and audiovisual forms, while trademarks protect business identifiers such as logos and product names. Copyright protects creative expressions in audio, visual, and audiovisual forms, while trademarks protect business identifiers such as logos and product names. The mere fact that a work is published digitally does not negate the creator’s moral and economic rights. Whether the entire work is copied or a small portion is embedded into new content, unauthorized use can result in legal consequences. These risks include requests for removal of content from digital platforms, civil lawsuits for damages, and administrative or criminal sanctions as regulated by applicable laws. 

For instance, on platforms like YouTube, the Content ID system automatically detects and manages copyrighted content. Copyright holders register their works with YouTube, and the system automatically matches uploaded content containing the same audio or visuals. Copyright holders can then choose to block the video (take-down), monetize it, or simply monitor its performance.¹

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C. Protecting Moral and Economic Rights in the Social Media Universe

Using protected works such as celebrity photos, or embedding TikTok audio in creating content for commercial purposes on social media, or parodying iconic works,  not only raises plagiarism concerns but also infringes two core aspects of copyright law: moral rights and economic rights. Whether these actions involve directly using protected works or embedding them as part of newly created content, unauthorized use remains an infringement. While such actions may appear trendy or viral, they constitute unauthorized exploitation of creative works. 

Moral rights, as defined in the Copyright Law, are rights inherently attached to the Creator.² Meanwhile, economic rights refer to the exclusive right of the Creators or Copyright Holders to obtain economic benefits from their works.³

Moral rights protect the integrity of a work, guaranteeing recognition of the creator and the right to object to any modification or use that distorts their expression. In Constitutional Court Decision No. 63/PUU-XIX/2021, the Court emphasizes that moral and economic rights are inseparable components of copyright, and both constitute the creator’s constitutional rights, which the state must protect, whether carried out in offline or online spaces. For example, in the public controversy surrounding the YouTube channel named WarKopi, which parodied the legendary Indonesian comedy trio, Warkop DKI. Although positioned as a parody, the adaptation, carried out without proper permission or contextualization, exploited the work for profit (economic rights), damaging the aesthetic value and public perception of the original creators (moral rights). Practically, this tarnished brand image of the creators and opened the door to legal claims or even criminal sanctions. 

In this context, creators and businesses must understand that infringement does not depend on the size or scale of the copied material. Whether using a whole song, a logo, or only a few seconds of audio, unauthorized use without proper licensing constitutes an infringement. 

In our view, preventing such risks requires: 

1. Obtaining proper authorization or official licenses when using third-party works for commercial purposes; and 
2. Providing clear attribution and maintaining the integrity of the work to avoid misrepresenting the creator’s image or identity. 

The above approach not only minimizes legal risks but also strengthens brand credibility in the eyes of an increasingly IP-aware professional audience. 

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D. Common IP Violations in the Social Media Universe

IP violations in the social media universe are not only widespread but also often committed unknowingly by businesses, creators, and influencers. Risks arise both when using existing protected works and when creating new content that incorporates protected elements, even in the smallest portions. Some common examples of such violations include: 

1. Using Non-Commercial Music for Commercial Content
   Many businesses, content creators, and influencers use free music from TikTok or limited-license libraries for their paid content, particularly in the form of endorsements. For example, it is common to see influencers embedding viral audio in product promotional videos without verifying the licensing status. This practice infringes on the copyright holder’s economic rights, as the Copyright Law clearly states that commercial use of copyrighted works requires permission from the Creator or Copyright holder.⁴
2. Displaying Logos/Trademarks Without Authorization, or Creating a False Impression of Affiliation
   Featuring well-known logos or trademarks in digital content that gives the impression of a business relationship, endorsement, or affiliation when none exists poses a risk of trademark infringement. For example, in 2023, an Instagram account named “@ZARA_id_Official” promoted fashion products by claiming to be an authentic ZARA reseller, which was misleading and confusing the public about the source of the products. After receiving reports from consumers and scrutiny by ZARA’s legal counsel, ZARA issued a cease-and-desist letter and reported the account for trademark infringement. Instagram subsequently took down the account, and the violator failed to respond to ZARA’s requests for legal clarification.⁵ This case illustrates how unauthorized use of trademarks that imply official endorsement or affiliation can result in legal action under the Trademark Law.⁶
3. Using Illustrations, Graphic Designs, Photos, or Footage Without Permission
   An Indonesian celebrity reported a cosmetics company to the Jakarta Metropolitan Police for continuing to use her photograph without permission on their product packaging, despite the expiry of their partnership. She claimed damages of up to IDR 56 billion, citing not only financial losses but also reputational harm and loss of economic potential resulting from the unauthorized use.⁷
4. Parodies That Ignore Moral Rights 
   Creating parodies or adaptations of popular content, e.g., films, series, or well-known cultural works, without respecting the creator’s moral rights may pose legal risks. One example is the public controversy surrounding the YouTube channel named WarKopi, which parodied the legendary Indonesian comedy trio, Warkop DKI. In 2021, the Directorate General of Intellectual Property (DJKI) confirmed that WarKopi’s content was produced without the permission of Warkop DKI’s sole surviving member, thus establishing a clear case of copyright infringement. The parody not only involved the unauthorized commercial use of protected creative elements but also raised concerns over the misrepresentation of the identity and legacy of the original creators. 

E. Legal Consequences and the Importance of IP Risk Mitigation

In today’s social media era, mitigating legal risks related to IP infringement is crucial. Beyond civil disputes and reputational damage, Indonesia’s IP laws provide for criminal sanctions against unauthorized commercial use of copyrighted works and trademarks. 

For example, under the Copyright Law, any person who reproduces the work in any form without the permission of the Creator or the Copyright Holder may be subject to imprisonment of up to 4 years and/or a fine of up to IDR 1 billion.⁸ Similarly, the Trademark Law stipulates that unauthorized use of an identical trademark may result in imprisonment of up to 5 years or a fine of IDR 2 billion, while the use of a substantially similar trademark may result in imprisonment of up to 4 years or a fine of IDR 2 billion.⁹

Therefore, risk mitigation shouldn’t be taken lightly.  Legal risks can arise not only when using existing works but also when creating new content, where protected elements may be unintentionally incorporated. Every business and creator must ensure that the content they publish, either in the form of music, videos, logos, or images, does not infringe protected IP rights. This may include securing prior authorization, a licensing agreement, or written permission from rights holders. Ultimately, respecting both the moral and economic rights of creators is not only a legal obligation but also a reflection of ethical business conduct in today’s digital era. 

For tailored guidance and information on protecting your IP and ensuring your content complies with IP laws in today’s complex digital landscape, you can contact us at ADCO Law. 

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About ADCO Law:

ADCO Law is a law firm that offers clients a wide range of integrated legal services, including commercial transactions and corporate disputes in a variety of industry sectors. Over the course of more than a decade, we have grown to understand our clients’ industries and businesses as well as the regulatory aspects. In dealing with business dynamics, we provide comprehensive, solid legal advice and solutions to minimize legal and business risks.

From Upstream to Downstream, We Understand Your Industry. In complex transactions and certain cases, we actively engage with financial, tax, and environmental specialists, accountants, and law firms from various jurisdictions to add value to our clients. Our strong relationships with Government agencies, regulators, associations, and industry stakeholders ensure that our firm has a holistic view of legal matters.

ADCO Law is a Proud Member of the Alliott Global Alliance (AGA) in Indonesia. Founded in 1979, AGA is one of the largest and fastest-growing global multidisciplinary alliances, with 215 member firms in 95 countries. As a law firm, we also believe in regeneration. To stay abreast of business changes and stay relevant, our formation of lawyers is comprised of the top graduates from Indonesian and international law schools.