news Copyright Owners’ Love/Hate Relationship With TikTok Raises Legal Issues

[Salieri]

 

While the sirens sounding security concerns about TikTok reach fever pitch, the purveyor of 15-second viral videos desperately seeks to silence a distress signal from another detractor:  the music industry.  Meanwhile photographers publicizing their work on Instagram battle unlicensed embedding of their images by websites like Mashable and Newsweek.  What’s happening?  For those whose livelihood depends on copyrighted works, social media sites like TikTok and Instagram present a quandary.  These platforms can launch an artist’s work onto the world stage.  But they can also facilitate and accelerate the copyright infringement of that same work.  Thus a love/hate relationship has arisen between artists and social media platforms.  And as with many love/hate relationships, the simmering attendant legal issues promise to be hotly contested and perhaps lead to some developments in copyright law.

TikTok and the Music Industry
TikTok, the multi-billion dollar platform first founded in China in 2012 and launched worldwide in 2018, allows users to create and upload 15 second videoclips ranging from lip syncs to dance routines.  Songs used in TikTok videos have taken over the charts.  The problem?  The majority of TikTok clips include music—much of it unlicensed music.  Consequently, the music industry around the world has been trying to negotiate agreements with TikTok and its parent company, Beijing-based Bytedance. 

Last October, the National Music Publishers Association (“NMPA”) joined those calling for an investigation of TikTok over security concerns and asked that copyright theft be included in the scope of the examination.  In April 2020, NMPA’s chief executive, David Israelite, reportedly told the Financial Times a lawsuit was likely, estimating that 50 percent of the music publishing market was unlicensed with TikTok. 

But in July, NMPA signed an agreement with TikTok.  The NMPA agreement gives members the ability to opt-in to a licensing framework and is retroactive as of May 1, 2020.  That offers TikTok some relief from the looming legal storm, but the platform remains in contested negotiations with ICE, a joint venture representing music rights in the US, Germany and Sweden. 

Meanwhile, TikTok users grant TikTok a very generous license.  Although the user retains ownership of the copyright in the user’s created work, a user in the US grants TikTok:  

an 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.

But does a user similarly grant a license to a third party who embeds a TikTok video?  TikTok addresses that in its Terms of Service with “Through-to-the-Audience Rights.”

All of the rights you grant in your User Content in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third party services will not have any separate liability to you or any other third party for User Content posted or used on such third party service via the Services [defined as the Platform and related websites, services, applications, products and content].

So TikTok’s Terms of Service declare that users have no rights against any third party who picks up the video via TikTok’s services.  Or so it seems.  But the interpretation of terms of use may not be as incontrovertible as at first appears.  Recent cases involving Instagram may prove instructive.