By: Noelle Henry

TikTok, a video-sharing platform, has quickly become one of the most popular social media platforms to date. In fact, some statistics have shown that, in 2021, TikTok overtook Google as the year’s most popular domain. However, as the platform becomes more popular, it opens its doors to a multitude of legal challenges with copyright infringement near the top of the list. TikTok’s intellectual property issues arise largely from the music and choreography on the platform, despite their attempts to mitigate copyright infringement.

TikTok’s intellectual property policy states that it “do[es] not allow any content that infringes copyright …. [and] any user content that infringes another person’s copyright may be removed.” However, TikTok does place a condition on this statement by contending that “not all unauthorized uses of copyrighted content constitute an infringement.” Additionally, despite the platform’s proclamation that it will take down videos containing copyright infringing videos, of the 81 million videos TikTok removed in the second quarter of 2021, fewer than 0.5% were copyright related. Moreover, in 2020, TikTok was forced to enter into a global agreement with the National Music Publishers Association (“NMPA”) in response to NMPA’s allegation that at least half of the music on the application was unlicensed and in direct violation of copyright laws. As part of this agreement, NMPA members will be able to opt in to “a licensing framework that allows them to receive benefits for their work on TikTok.”

After entering into this agreement with NMPA in 2020, TikTok went on to make licensing agreements with large music labels. Specifically, TikTok signed a licensing deal with Sony Music Entertainment, which granted the platform long-term access to the music label’s catalog of artists and songs. Additionally, TikTok entered into similar deals with Universal Music Publishing Groups and Warner Music Group. In essence, these deals shield TikTok from copyright infringement liability by providing TikTok with access to recorded music from the music labels. In exchange, TikTok agreed to provide equitable compensation to artists and songwriters, as well as insights into “models necessary to advance their careers.”

As a result of these agreements, brands and social influencers utilizing the platform as a marketing tool may face the brunt of copyright infringement liability. For example, in 2020, Sony Music brought a suit against Gymshark, an English-based company that sells fitness apparel online, for using songs by some of the label’s most popular artists without its permission in social media advertisements. In its complaint, Sony Music claimed that Gymshark’s marketing strategy of  posting videos to Instagram and TikTok “misappropriated hundreds of the most popular and valuable sound recordings in the market.” Although Sony Music and Gymshark were able to settle this dispute, it serves as a prime example for how brands and social influencers, who utilize social media to gain popularity, are going to be the ones facing legal consequences of using music.

Choreography is another copyright issue faced by TikTok. Pursuant to United States copyright statutes, copyright protection extends to original works of authorship fixed in any tangible medium of expression, which includes “pantomimes and choreographic works.” As a platform, TikTok is well known for its viral dances. However, as more people copy these dances in videos, the more the creators of the dances are left in the dark. As a result, many creators of dances are trying to secure the copyrights to their choreography. A movement on TikTok named #Creators4BIPOC is helping young creators secure the copyrights to their choreography.  Once these dances are copyrighted, young creators are able to receive proper credit for their work. As more Tiktok creators copyright their work, brands and social influencers will need to be equipped with the ability to obtain licensing agreements with musicians and permission from choreographers to use their work.

Noelle Henry is a second-year law school student at Wake Forest School of Law. She acquired a Bachelor of Arts in English from the University of Texas at Austin. During her undergraduate years, she wrote for the newspaper the “Daily Texan” and served on the University’s English Council. Last summer, Noelle worked as a legal intern at the Financial Industry Regulatory Authority in its Enforcement Department. Upon graduation from law school, Noelle intends to work in transactional law.