“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 Office ‘In 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.