Social media platform TikTok has caused anarchy in the music industry – on the one hand, it is pushing music up the charts but on the other hand, it has been in a year long disagreements with industry representatives about copyright. However, TikTok has now signed a copyright licensing agreement with US National Music Publishers' Association (NMPA).
TikTok’s impact on the music industry
TikTok is the latest trend in social media. The platform is based around users creating and sharing 15-second video content, mostly in the form of challenges, dances or lip syncing along-side a sound clip. The sound clip can be uploaded audio or chosen from the app.
Tiktok has been instrumental in music discovery as well as pushing songs up the charts. For example, in 2019, Lil Nas X’s song “Old Town Road” first went viral on TikTok and now holds as the longest-reigning Billboard Hot 100 No. 1 in the chart’s history. Likewise, Megan Thee Stallion’s 2020 hit song Savage, also went viral after a choreographed TikTok dance that became the "Savage Challenge."
The music industry and collecting societies for rights in musical works have been trying to negotiate agreements with TikTok, threatening legal action against the social media platform for copyright infringement in the absence of such an agreement. They want to see songwriters, composers, musicians and artists directly remunerated for the use of their songs on the social media platform by way of royalty payments.
TikTok licence agreements
Last year, ICE (a joint venture representing the digital music rights of PRS in the UK, GEMA in Germany, and STIM in Sweden) attempted to reach an agreement with TikTok that ended up being referred to the UK’s Copyright Tribunal in July 2019. However, by December 2019, the dispute was withdrawn from the tribunal, as the parties announced that they would be entering into arbitration to agree the terms of a licensing deal that would include retrospective use of copyright material on TikTok. The outcome of the arbitration is yet unknown.
In July 2020, TikTok signed licensing deals with independent distributors Believe, and its subsidiary, TuneCore. Within days of that agreement, it was announced that TikTok had also agreed a licensing deal with the UK National Music Publishers Association (NMPA). This partnership deal gives NMPA members the ability to opt-in to a licensing framework that allows them to benefit from their works included on TikTok, effective from 1st May 2020.
TikTok Terms & Conditions
At the moment, the terms and conditions of TikTok state that when users upload content, they permit other users to re-use it. This is different from other social media platforms such as Instagram, which state that users either upload their own original content or content that they have permission to use. From a social media perspective, these TikTok terms make practical sense because the whole point in the platform is sharing and re-using sound clips to re-create derivative videos. However, of course, from a copyright perspective this is a total evasion.
One thing that the TikTok terms do have in common with other social media platforms is their approach to user ownership of content. The TikTok terms state that whilst the user remains the copyright holder of the content that they upload, a generous licence to the tune of:
Unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.
Moreover, it explicitly says that by uploading a sound recording, users grant TikTok the right to reproduce it, publicly perform and communicate it to the public on a royalty-free basis, including to
a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
Thereby completely undermining the entire music copyright system. No wonder the music industry is ticked off!
TikTok & copyright infringement
In a post last year, our Asia Correspondent Kat Tian reported that the Chinese version of TikTok, called Douyin, successfully argued copyright infringement when a video that was originally uploaded to Douyin was later uploaded to Huopai – a similar video-sharing platform. Huopai argued that there was no infringement because the video was unoriginal and therefore did not qualify as a copyright work, stating that there was limited room for creativity in a 13 second video. However, the Court found that the video did fulfil the requirement of originality as a work created by a process similar to cinematography; stating: “For the works created on the same theme by different authors, the expressions of which are creative and independently completed, the authors enjoy independent copyrights in relation to the corresponding works.”
It is also interesting that the parties in this case were the two platforms and not the individual users, meaning that the licence granted enables the social media platform to enforce the copyright of the creator.
Are TikTok videos parodies?
I wonder if the videos created on TikTok are parodies? In the UK the government guidelines say that a parody for the purpose of the copyright exception is “a comedian may use a few lines from a film or song for a parody sketch.” They UK law states: “Fair dealing with a performance or a recording of a performance for the purposes of caricature, parody or pastiche does not infringe the rights conferred by this Chapter in the performance or recording.”
Does a 13 second sound clip, used for the purpose of a musical-meme qualify? I consulted Sabine Jacques’ book on Parody; where she says “a parody is something distinct from a mere re-working or altered copy. A parody communicates a new distinctive message from the earlier work it reproduces, and typically results in the creation of a new expression which may be eligible for copyright protection.”
We know that, at least under Chinese copyright law, these videos can be eligible for copyright protection. Perhaps some of the videos uploaded to TikTok might be considered a parody – for example, when a user creates a funny lip-syncing video using a sound clip from a reality TV show, to create a new scene. However, when users simply copy a dance routine to a song, I'm of the opinion that this is simply a re-working and does not create a new distinctive message. Therefore, whilst it is possible that some of the user’s videos fall within the parody exception, probably most of them do not. In any event, it would seem that even if the users’ videos were considered parodies, that TikTok’s use of the sound clips still require a copyright licence.
What do readers think?
About the Author
Dr Hayleigh Bosher is a Lecturer in Intellectual Property Law at Brunel University.
This blog was originally posted on The IPKat'a blog here.
About the IPKat
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