1
“I’m So in Love with My Brother Right Now”; Will These and Other Soundbites Ultimately Prove to be TikTok’s® Undoing?”
2
Making the Cut’s® Johnny Cota: The World’s Luckiest Designer or Hanging on By a Thread

“I’m So in Love with My Brother Right Now”; Will These and Other Soundbites Ultimately Prove to be TikTok’s® Undoing?”

The latest social media craze: TikTok.

The app previously known as music.ly was a huge success amongst Gen-Z in 2014-2017. It was then purchased by ByteDance® in November 2017 and became known as TikTok®. TikTok is the latest app to attract the attention of social media lovers from all walks of life, including business moguls, young kids, and a large number of Instagram influencers. TikTok is a platform where users share short videos featuring dances, lip-sync performances, and funny skits, often set to music, creating a fun and dynamic platform.

As reported by Business Insider, “TikTok was initially responsible for the meteoric rise of Lil Nas X’s “Old Town Road,” which broke the Billboard record for the longest song to consecutively sit at No. 1 on the Hot 100 chart”, due to a large number of videos on the platform made to that song.

Although TikTok has entered into many licensing deals with companies such as the music agency Merlin,  and short-term licensing agreements with the likes of Sony and Warner Brothers, its ongoing discussion with Universal Music threatens to put a damper on the success of this popular platform.

As reported by The Financial Times on April 4th, 2020, “Universal Music’s publishing arm did not have any licensing agreement in place with TikTok”, which “means that Universal’s songwriters, which includes Billie Eilish, Lady Gaga, Elton John and Taylor Swift, do not get paid royalties when their songs are inserted into TikTok videos”.

Moreover, the Chief Executive of the National Music Publishers Association (“NMPA”), David Israelite, told the Financial Times in April this year that a major copyright infringement lawsuit was a “likely future step.”

There seems to be no question that the use of music clips on a platform such as TikTok is covered by copyright law. According to the US Copyright OfficeIn the realm of music, federal law recognizes copyright protection for two separate subject matter categories: “musical works” and “sound recordings.” Each of these copyrights confers a particular set of rights—some exclusive to one of the two different music copyright holders’

There are three different forms of music licensing in accordance with the US Copyright Act: (1) S.112 – “Statutory License for Making Ephemeral Recordings”. (2) S.114 – “Statutory License for the public performance of Sound Recordings by Means of a Digital Audio Transmission”, and (3) S.115 – “Compulsory License for Making and Distributing Phonorecords”.

It is thus evident, that in an age where startups are the norm and so many of them are entering the business of music and entertainment apps, there are many intellectual property pitfalls generally, and copyright issues in particular, that companies need to be made aware of, and advised on how to avoid them.

In case you’re trying to think of some clips which have become popular in this way, here are a few examples: the line from Angelina Jolie’s 2012 Oscars Speech “I’m so in love with my brother right now”; lines from TV shows and movies such as quotes by the character Chandler in the series “Friends”; and many soundbites of the Kardashian sisters from their reality TV show “Keeping up with the Kardashians”. Another example that has gained popularity is Demi Lovato’s line from the Camp Rock movies “She’s really good”. Other soundbites include the soundbite from Nintendo’s 2002 GameCube release, Super Mario Sunshine it has since been remixed by a TikTok user who goes by the handle @.havky and is being used to dramatize videos being made on TikTok.

In addition to the many music licensing issues that are arising with videos on TikTok, the platform is also facing backlash for the many videos allegedly infringing upon choreography copyright. As an example, TikTok encourages those who connect to the platform to upload short videos of themselves for typically no more than 15 seconds, performing choreographed dances. These dances are usually choreographed by one individual user and then copied by others who film themselves performing the same dance in an attempt to go viral.

A recent particular case in point was the 2019 claim against the video game and software developer and publisher Epic Games, Inc. by two former Maryland College basketball players Jared Nickens and Jaylen Brantley. Their claim was that Epic Games profited from the “Running Man Challenge” dance that they performed in social media videos and live on “The Ellen DeGeneres Show” in 2016. Epic Games’ largely popular video game Fortnight® allows players to purchase dance moves for their avatars to perform in the game. The U.S. District Judge Paul Grimm recently threw out the case saying that “a singular dance move does not constitute choreography in accordance with the US Copyright Act of 1976”.

This was similarly the case for the “Carlton,” a dance move that was created by Alfonso Ribeiro who portrayed “Carlton Banks” on “The Fresh Prince of Bel-Air”, he claims to have originated the moves for “The Fresh Prince of Bel-Air” in 1991. He brought the “Carlton” back to life on “Dancing with the Stars” in 2014. The Copyright Office had said that the dance “isn’t elaborate enough to let the show own it and prevent others from having fun doing it”.

 

According to the national copyright body, social dances and simple routines are not “choreographic works” subject to the Copyright Act protection. “The Copyright Office defines choreography as ‘the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole,” according to Manatt Phelps & Phillips’s Jeffrey S. Edelstein. “Since choreography is a subset of dance, the Copyright Office will register a choreographic work only if it contains a sufficient amount of choreographic authorship.”

An example of a dance that potentially meets the criteria of the Copyright Office, which was copied is the extremely popular dance “Renegade”, created by a 14-yr old girl from Atlanta named Jalaiah Harmon, she had originally posted to Instagram. Major TikTok influencers (such as Charli D’Amelio who now has more than 50 million followers) copied Jalaiah’s choreography and posted it to TikTok without giving her credit for her dance. Since the dance has gained so much traction, Jalaiah, after many attempts of messaging and posting her claim, has finally been able to get the influencers to give her credit for the dance she created but has not received royalty fees.

Unlike other social media platforms, such as Facebook, Instagram, and YouTube where a video is immediately removed if there is even a hint of impropriety, TikTok does not. The above social media platforms also have licensing agreements including geographical licensing. An example of this is Instagram’s music extension which is a feature on Insta Stories. This feature allows the user to add a song or soundbite to their video or image, however, this feature is primarily only available in the United States and Britain and not at all available in Israel. Moreover, different songs and soundbites are available based on your country’s location. TikTok on the other hand allows all songs and soundbites to be available worldwide with or without a licensing agreement in place.

Could it be that TikTok has found to avoid the need to license? Most likely not. It could be argued that most of the music clips and soundbites on TikTok are changed, by adding either background music or additional soundbites. Could this be enough to avoid copyright infringement?

It does not help that TikTok has a “download” option which allows for sharing of the videos between platforms such as Instagram, Facebook, and WhatsApp easier and thus harder to maintain a user’s copyright. Other Social media sites do not remove these videos from “stories” which is where they are typically shared especially since the other platforms tend to have geographical music licensing agreements in place.

With the way things are going, it is looking more and more likely that TikTok will face legal action. The question is when.

Making the Cut’s® Johnny Cota: The World’s Luckiest Designer or Hanging on By a Thread

Like many people who love fashion, I was obsessed with Project Runway®, a long-running and ongoing reality TV show whose goal is to discover a new and amazing fashion designer. So naturally, when Amazon Video announced that they would be filming a new reality show called “Making the Cut”, with the original hosts of Project Runway (Heidi Klum and Tim Gunn), I was excited to watch.

Making the Cut’s first season (aired from March 27th – April 24th, 2020) show-cased contestants who are established fashion designers and are looking to take their brands to the next level. The judges included the above-mentioned Heidi Klum, alongside well-known personalities Naomi Campbell (Supermodel), Joseph Altuzarra (Founder and Creative Director of Altuzarra), Carine Roitfeld (French Vogue Fashion Editor), Nicole Richie (Creative Director of House of Harlow 1960) and Chiara Ferragni (Italian entrepreneur and Fashion Blogger).

Each episode had a winning design (a singular look) which would be immediately available for purchase on Amazon.com, and the winner of the final episode at the end of the season received a) a $1Million investment from Amazon, b) a mentorship from Amazon Fashion’s CEO Christine Beauchamp and c) the privilege of designing a collection (a collection will usually include a variety of styles, from evening wear to sportswear to outerwear) to be sold exclusively on Amazon.

The last episode of the season saw the final two contestants pitching their design ideas to the above-mentioned Christine Beauchamp. (This gave [or could have given] the impression that Amazon was in possession of all the cards, including what products should be designed and how they would be produced, as well as choosing the winner. This is in stark contrast to other fashion competition shows such as “Project Runway” and Netflix’s® “Next in Fashion®”, where those judging the competition and selecting a winner are not the investors or those producing and selling the fashion line).

The winner of the shows first season was Johnny Cota, the owner, and designer of Skingraft®, and now additionally “Cota by Johnny Cota®” which he launched while on the show. In an interview with Brad Goreski, after the season concluded, Cota stated that he was always planning on using the show as a platform to launch “my new brand and my new branding concept”.

While some are saying that Cota, based on this success taking place during the current Corona pandemic, may-be one of the luckiest emerging designers, to me Cota’s newfound success seems to raise a number of potential concerns, by which there may be quite a few Intellectual Property strings attached, with Amazon looking like quite the puppet master!

Why do I say this? Let’s see:

While on the show, Johnny and the other contestants used both their pre-existing and new trademarks, as well as new and innovative garment designs created on the spot and fabrics. All of the newly created trademarks and designs have inherently protectable intellectual property rights. As those experienced in IP are aware, even without the additional exposure that reality TV provides to worldwide audiences, protecting new designs and trademarks can be complex and must be handled correctly. The complexity can be exacerbated by the exposure brought by the show, bearing in mind that anyone watching it has immediate access and knowledge of the designs and design process.

Typically, when a designer is in the process of designing his next creations, he can apply for protection prior to the release of the design, namely, the sale of garments embodying the new design. While it is true that the show is filmed months prior to its release, somewhat (although not completely) mitigating this problem, it still begs the question as to the ownership of the rights to the designs as created on the show. Is it the designer or, as the sole investor and producer of the fashion line, is it Amazon? Or -arguably worse still – are the rights unprotected altogether?

Who Does Own the Rights?

So, has Cota retained any rights to the designs created for Amazon such that he can market them independently? Or does Amazon have exclusivity? It is possible that the agreement between Amazon and Cota (as well as the other contestants) is a work for hire scenario. However, if those rights extend to a new label, will that preclude any independent use by Cota of that same label? And will his agreement with Amazon effectively mortgage all or any of Cota’s future designs to them? Is such a new label, per se, exclusive to Amazon or do their rights extend solely to the first fashion line created under that label?

In its report about Rinat Brodach, one of the contestants of the first season of Making the Cut, the Times of Israel reported that “the designer is back in New York”, “preparing a new collection based on her work during the show” (emphasis added). Taken together with the fact that she has not maintained any Amazon related online presence, it would seem that the designers do maintain a level of ownership of their designs after the show.

Possible IP Arrangements

From a legal perspective, there are a few ways contestants on a competition show can maintain and protect the Intellectual Property rights to their designs and trademarks being used and shown. One obvious way would be a licensing deal between Amazon and the contestant giving Amazon the rights to the IP so long as the contestant is on the show. Only allowing Amazon to use those rights in the context of the current season when and if the items are sold on the Amazon platform.

Another way to protect the IP rights is by registration of the contestants’ designs and trademarks during the period of time between the end of filming of the series and the release of the first episode.

We do not know what the agreements between Amazon and the contestants look like. It may very well be that Cota and the other contestants had licensing deals in place prior to the start of filming or registered the designs and trademarks after filming.

Opportunities During Crisis

Putting the above IP concerns aside, Cota’s success was certainly related to the timing of the show. As the Covid-19 pandemic struck when production for Cota’s line was meant to begin, Amazon handed the reins for production back to him and he was thus able to produce his line the way he saw fit and, as he said, “maintain the ethics of his brand”. He used his own production line in Bali and ensured that the sustainable fashion brand he sought, was produced the way he had envisioned. He was quoted as saying “When things crumble it gives way to new designers”. Referring to the Covid-19 pandemic and to the fact that while so many of his fashion colleagues’ brands collapsed, it also gave newer designers, such as him, a chance to flourish and an opportunity to grab the chance with both hands.

It can only be hoped that the first season contestants were able to maintain some of the rights to their designs and labels. It remains to be seen however whether or not to be the standard for further seasons and contestants and their ability to maintain such control over their designs and production.

I’m excited to see how Amazon furthers this new advantageous show and their hold on the fashion industry. With more and more brands entering the sustainability space and lessening their production Amazon seems to be going in the opposite direction with expanding their space and production. By buying into the fashion space and taking ownership over so many brands including the designs created on Making the Cut.

In short, while IP rights are an important tool, and I would like to hope that any arrangements between Cota and Amazon were fair and above board, it is clear that a little bit of luck is required for any new name to be able to break out. In Cota’s case, the luck was the opportunity provided to him by Amazon – as the economy shut down and opportunities shrank for most of his colleagues/competitors. Jonny was able to take the opportunity to flourish and expand his brand and created what may become one of the leading brands of the future.

 

© Copyright JMB Davis, Jerusalem, Israel July 2020. All Rights Reserved.

Copyright © 2020. JMB Davis Ben-David.