TikTok Challenges: Harmless Trends or Copyright Infringement?
Despite spending the majority of this year isolated from friends, school, and even social events, we as a society have never given up our confidence in social media’s power to document our collective experience. TikTok, a short-form video mobile app, has surged in popularity since the COVID-19 outbreak and continues to provide a space for creators to post content of all genres.1 Countless hours of scrolling have taught us the lyrics to Doja Cat’s “Say So,” explained the “Renegade” choreography, and forever seared “the woah” into our brains.2
The phenomenon of hopping on social media trends is hardly new in the digital age we live.3 Part of TikTok’s appeal comes from watching different users (celebrities and common folk alike) post their own renditions of the same trends.4 However, TikTok’s interface is arguably designed in such a way as to encourage creators to “steal” content: users are free to take the audio track of any other video existing on the platform, use songs and remixes of famous music artists, and view viral hashtags on the discover page.5 It’s not uncommon to see a multitude of videos posted by separate creators that utilize the same basic plot premise, dance, music, or sound recording.6 This phenomenon raises interesting questions in the field of copyright law: how are users able to use copyrighted music created by famous artists? Is using the audio tracks from other users considered copyright infringement? Do creators have copyright protection over original dances and choreography?
TikTok’s intellectual property policies state that it does “not allow any content that infringes copyright,” further defining copyright as “a legal right that protects original works of authorship,” as “original expressions but not underlying ideas or facts.”7 Unfortunately, the boilerplate language used does not give much insight into the specific rights involved regarding the use of music, dance, or audio.8
Although the short form lip-syncing app has been embraced by its audience as a “Vine 2.0,” TikTok is, at its core, built for music.9 The platform boasts a vast library of song clips available for users to overlay over their videos.10 Fortunately, TikTok has secured over 8,000 licensing deals, mostly inherited from its predecessor Musical.ly, with three of the music industry’s biggest publishers: Universal Music Group, Warner Music Group, and Sony Music.11 This balance seems like a win-win for both TikTok, who can legally make use of popular tunes, and for artists (or their record labels) who get paid a cut. However, an estimated 50 percent of all music used in TikTok videos is unlicensed.12 Users risk removal of videos containing unlicensed music that may even lead to permanent account deletion for persistent violations.
However, TikTok’s audio library is far from being limited to licensed music created by popular artists. Users have the ability to create their own voiceovers as well as take voiceovers or audio tracks from any existing video on the platform and overlay it over their own content.13 From lip-syncing dialogues to remixing tracks, TikTok’s audio library is vast and continues to grow. Do users have a right to copyright protection in their own sound recordings? Fortunately, the video interface contains a small indication in the bottom right-corner that credits the original sound creator.14 However, whether or not viewers see that indication while scrolling or are fooled by a convincing dubbed performance is another story. A sound recording is defined by the Copyright Act as a work that results from the fixation of a series of musical, spoken, fixed in a tangible medium.15 At face value, the sounds accompanying TikTok videos seem to meet the threshold requirement of originality and fixation required for copyright protection. But it is unlikely that creators will be willing to go through the effort of securing copyright protection over a minute-long clip featuring their voice.
Lastly, viral dances on TikTok have been a major part of the app’s popularity. This raises questions such as whether the original creator of a viral dance has a copyright interest in the choreographic work. The U.S. 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.16 Under this definition, even a simple choreographed performed on TikTok may seem to warrant copyright protection. However, in a February 2019 decision, the U.S. Copyright Office denied registration of the famed “Carlton” dance originally performed by Alfonso Ribero on the sitcom The Fresh Prince of Bel-Air.17 The U.S. Copyright Office found the choreography in that instance to be a “simple dance routine” and therefore ineligible for registration.18 This outcome doesn’t bode well for copyright protection over the minute-long choreographic works on TikTok. But perhaps the real question we ought to ask is whether protection over these dance challenges is even worth fighting for? Especially during a time in which isolation has become the norm, there’s a certain comfort in seeing people of all ages and backgrounds coming together and recreating the same viral dance, voiceover, or trend. Out of the 800 million active users worldwide,19 the TikTok algorithm has ensured that the ever-evolving accounts and trends to copy, reinvent, and remix are readily available “for you.”
See Tara Johnson, The Rise of TikTok During COVID-19, tinuiti (Apr. 21, 2020), https://tinuiti.com/blog/marketing-news-covid-19/tiktok-covid-19/ [https://perma.cc/BT2M-EGAH].↩
See Dash Hudson, The Biggest TikTok Trends and Why They’re Successful, Medium (Feb. 4, 2020), https://medium.com/@DashHudson/the-biggest-tiktok-trends-and-why-theyre-successful-9ce03c0bde6b [https://perma.cc/VSZ6-T8T3].↩
Legal, TikTok, https://www.tiktok.com/legal/copyright-policy?lang=en (last visited Oct. 1, 2020) [https://perma.cc/BZ2D-VHSQ].↩
See generally id.↩
See James Hale, TikTok Strikes Short-Term Licensing Deal with Sony, Warner, Universal (Report), tubefilter (Apr. 1, 2020), https://www.tubefilter.com/2020/04/01/tiktok-music-licensing-sony-warner-universal [https://perma.cc/KN2Q-Y229].↩
Claire Chalmers, From CopyCat Dances to Unlicensed Music: Is TikTok a Copyright Lawsuit Waiting to Happen?, The Fashion Law (May 20, 2020), https://www.thefashionlaw.com/is-tiktok-a-copyright-lawsuit-waiting-to-happen/ [https://perma.cc/8FLE-F3W9].↩
See Melanie Weir, How to add custom sounds and music to a TikTok, or pick from TikTok’s pre-made library, Business Insider (May 7, 2020, 10:19 AM), https://www.businessinsider.com/how-to-add-a-sound-to-tiktok [https://perma.cc/C9TN-96BU].↩
See Jerry Banfield, TikTok for Beginners 2019 – Home Screen and User Interface Tutorial!, JerryBanfield.com (Nov. 26, 2019), https://jerrybanfield.com/tiktok-for-beginners-2019/ [https://perma.cc/YMA2-D7KA].↩
See Chalmers, supra note 12.↩