TikTok: Time to think about copyright

7 minute read
27 September 2022

Shortly after the release of the record-breaking Netflix show "Bridgerton," Abigail Barlow and Emily Bear took to TikTok to post songs they had written inspired by the television show. The posts were eventually incorporated into a full album called the "Unofficial Bridgerton Musical." The album was wildly successful and earned Barlow and Bear a Grammy in 2022 for best musical album. On July 26th, the duo performed the album in front of a sold-out crowd at the Kennedy Centre in New York City. This performance apparently prompted Netflix finally to take legal action: it filed a lawsuit against the two TikTokers for copyright infringement.

According to the complaint, "Barlow & Bear's conduct began on social media, but stretches "fan fiction" well past its breaking point. It is blatant infringement of intellectual property rights. The copyright and trademark laws do not allow Barlow & Bear to appropriate others' creative work and goodwill to benefit themselves. Netflix therefore files this action to protect its rights."[1]

This dispute reminds us that, while TikTok and other social media platforms can lead to incredible success, creators should be aware that their activities may also open the door to claims of copyright infringement. As we have previously discussed the copyright implications of fan fiction, we will not dive into the details of the claim. Instead, we'd like to take this opportunity to remind creators of four key questions they should ask themselves before hitting "post" on their favourite platform.

1. Does my post contain any third-party content?

The general rule is that you must obtain authorization anytime you want to use third-party content. This means that before you upload a video, you must ensure that you are not using someone else's copyrighted material unless you have the right to do so. For example, if you plan to perform a cover version of someone else's original song, you would need permission. Or if you adapt a third party-owned television show into a musical and showcase it on social media, authorization may be required. Fortunately, there are some exceptions to this general rule – which brings us to the next key question.

2. Was any of the third-party content taken from the platform's Media Library?

Suppose you are using music clips that have been taken from the TikTok audio library. In that case, it is unlikely that you need to obtain authorization from the owners.

When TikTok first started to erupt, music publishers and record labels did too…with anger over copyright infringement concerns. Luckily for TikTok lovers, legal claims surrounding the use of in-app music were often resolved through negotiation of licensing agreements. In many cases, these negotiated agreements applied retroactively to create an entitlement to royalties on songs and sound recordings used prior to entering into the applicable licence. 

Thanks to these TikTok licensing agreements, some of today's most popular hits can be found on that app's audio library and can be used for new creations in novel contexts without obtaining individual permission. If the music that you are using is not taken from the library, the general rule still applies. Similar 'pre-cleared' audio or other content may be available through libraries on other platforms as well.

You may also use another user's original content (such as music or voice recordings) without permission if it was taken from their TikTok post. Although TikTok's Terms of Service ("ToS") explicitly prohibit copyright infringement and require users to acknowledge that they own the copyright in their original uploaded content, it also encourages users to create and collaborate. The ToS provide that by uploading content to the platform, a user is granting TikTok an unconditional irrevocable, non-exclusive, royalty-free licence, which, among other things, allows other users to modify, adapt, reproduce and make derivative works of the content. This grant is only valid if the user actually owned the copyright. If not, you may be liable for indirect copyright infringement and could have your content taken down.

3. Is my post for a non-commercial purpose?

TikTok's services and those of other platforms are provided for non-commercial, private purposes. Creators that have partnered with brands to make sponsored content for commercial use could face copyright infringement or other intellectual property claims if they use files from the audio library or other TikTok content in any type of commercial post.

 4. Is this fair dealing?

In Canada, even if an individual would otherwise infringe a copyright, it may be considered fair dealing if it is "for the purpose of research, private study, education, parody or satire." Much of the content produced by creators may fall under the categories of parody, satire or even education. To qualify as fair dealing, the activities must still be considered "fair", and in making this assessment the Court will consider a multitude of other factors, including:

  1. The purpose of the dealing (e.g. whether a video was posted for commercial purposes, which may not be allowed under the platform's terms of service);
  2. The character of the dealing (e.g. how widely the video is distributed);
  3. The amount of the dealing (e.g. the proportion of an original work being copied);
  4. Alternatives to the dealing (e.g. whether or not there are other options available for use, such as alternatives to an original dance);
  5. The nature of the work (e.g. whether the video will remain unpublished and kept off a public platform; this factor likely would not aid an infringer in a social media context); and
  6. The effect of the dealing on the work (e.g. how the new work will affect the market value of the original work).

The fair dealing defence has not been tested in Canadian courts in the context of TikTok and similar platforms. As such, it may be difficult to come to clear-cut conclusions about copyright infringement on social media. When in doubt, ask yourself the key questions above and contact your lawyer for guidance on the issues.

[1] Netflix Worldwide Entertainment, LLC et al v Barlow et al, 22-cv-02247, US District Court, District of Columbia.

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