Presentation
The music industry has adapted to new consumption patterns, profoundly influenced by online content platforms, with interactive video applications becoming a new musical medium.
Recent years have seen massive increases in listening on Spotify, Apple Music, and YouTube, while the recently launched TikTok app recorded over a billion listens on its service in 2019. Following in the footsteps of Myspace, Facebook, Twitter, Snapchat, and Instagram, TikTok has become the preferred social network of the latest generation, boasting over 500 million regular monthly users who spend an average of nearly an hour on the app.
This platform quickly distinguished itself from other social networks through the short format of its audiovisual content and its user-friendly interface for creating short, professional-looking clips. This has led to a trend of heavily incorporating music into content creation, positioning TikTok as the leading source for music discovery, surpassing YouTube.
Thanks to the enthusiasm of young audiences on the platform, many artists have gained considerable visibility, allowing them in many cases to launch a music career, benefiting everyone economically.
Read our latest article dedicated to the TikTok app.
How do TikTok and its users make money?
Unlike other social networks focused on advertising as a revenue stream, TikTok, like Twitch, prioritizes user donations and direct partnerships with creators to monetize their videos. To do this, TikTok uses a virtual currency, “Coins,” which allows users to make in-app purchases and earn commissions.
Gifts to give and diamonds to collect are among the tools that can later be converted into dollars. Finally, influencers can develop their own products and services, offered for sale through TikTok, which then becomes a significant advertising platform.
However, the Chinese app’s considerable growth and revenue—$200 million in 2019—mask significant legal issues, particularly regarding the protection of copyright on the content shared.
TikTok, a social network based on music videos
Music Buzz. In the music world, TikTok has long argued that it is not a music content consumption platform like Spotify, Deezer, etc.
Given the importance placed on music videos and its prominent position in the artistic ecosystem, TikTok is undeniably an influential player in the music industry today, to the point of encouraging record labels and publishing companies to adapt their business and marketing models.
Some practices involving paying influencers to distribute musical content and reach the widest possible audience have been observed, dangerously bordering on disguised advertising.
Its positioning in the music sphere has become even more pronounced since the launch of its Nesso download platform, in the current competition with other social networks in the music sector, such as Facebook’s Lasso, Instagram’s Teels, and YouTube’s Shots.
Licenses & Disputes. In the absence of licenses for more than 50% of the music used in its videos, numerous record labels and music copyright societies have also demanded royalty payments from TikTok, notably the Recording Industry Association of America (RIAA), an association representing most American singers, songwriters, and labels, including Universal, Warner Music Group, and Sony. The short format of TikTok videos is insufficient for the application to claim the exceptions provided by the Intellectual Property Code, particularly those concerning excerpts and short quotations.
It is in this context that the Twitch platform was subjected in 2020 to a wave of claims for violation of the Digital Millennium Copyright Act (DMCA) for music used in its published content, with retroactive effect. As the first victims of the breakdown in negotiations, many streamers were penalized for DMCA violations.
For example, Spotify, sanctioned in 2016, had to pay around $20 million in unpaid royalties for copyright infringement. Since then, discussions with key industry players have aimed to regulate the use of music within published content.
In France, SACEM recently announced it was approaching TikTok to define the terms of use for musical content. In the United States, agreements have reportedly been signed with the company and several music publishing companies, including Universal, Warner, and Merlin, for the legal use of music on the platform by its users.
Despite these efforts, the first legal disputes are emerging on a global scale, such as a Vietnamese company that recently ordered TikTok to remove all content containing musical segments belonging to its company, Zing Records, and to pay nearly $10 million in damages.
Influencers, creators: Copyright on a TikTok creation
Artists, Influencers, and Casters: Protect Your Digital Creations
Precautions & Penalties. As a content hosting platform, TikTok implements policies to control and monitor published content with regard to copyright, which can lead to various penalties for uploading it: removal or blocking of videos, suspension, or even deletion of their TikTok account. The risk of legal action from TikTok and rights holders is even greater if the published video achieves massive success with a large number of views.
However, the majority of users, including professional influencers and casters, do not intend to deliberately infringe copyright in their content and prefer to benefit from the transparency and user-friendliness of the rules and operation of the control tools used by the platforms.
Given the massive amount of information and audiovisual content published at any given moment, the protection of intellectual property and copyright requires the direct involvement of online sharing platforms.
Numerous digital tools, such as CMS (Content Management Systems), have been developed in recent years to ensure the legality of distributed content, particularly music and audiovisual content: fingerprinting, image analysis, hashing, metadata, watermarking, artificial intelligence, etc.
To encourage creation within its platform, TikTok has also made a music library available to its users through licensing agreements and partnerships with artists delighted by the potential exposure of their work.
Intellectual Property and Choreography. Given the prevalence of dance videos on TikTok, the question of intellectual property rights for choreography has arisen. The French Intellectual Property Code stipulates that, subject to the conditions of originality and authorship, the work is protected in accordance with Article 111-1, paragraph 1.
Article 112-2-2 paragraph 4 admits choreographies to copyright protection, the latter being the only one able to authorize a third party to exploit or distribute his creation. He also retains the prerogatives of moral rights, which are perpetual, inalienable, and imprescriptible, including, in particular, the right to respect for his name and status through the right of disclosure, the right of attribution, the right to respect for the integrity of the work, and the right of withdrawal and retraction.
In the United States, the rejection of a choreography application has raised some questions. Indeed, the US Copyright Office refused to register a dance choreography called “Carlton Dance,” considering it a simple gestural routine lacking specific characteristics or sufficiently developed personality.
Applied to the short and concise formats of TikTok content, it is likely that the majority of choreographies created and subsequently reproduced by third parties do not meet the criteria established by national laws for copyright protection.
TikTok, YouTube, Twitch: future increased responsibility to protect copyright
Through the example of TikTok, the legal framework for all content platforms is gradually shifting towards greater liability.
Historically, applicable legislation, confirmed by case law, has rejected the liability of online content-sharing platforms for the illegal uploading of copyrighted works by users. Legally, platforms are simply providers of facilities and do not directly perform acts of communication; these acts are carried out by the users who upload the content and who must bear the responsibility for it.
However, the recent directive on copyright and related rights in the Digital Single Market, adopted on April 17, 2019, has challenged the immunity of platforms. The infamous Article 13, criticized by influencers and now Article 17, requires platforms to obtain authorization from the rights holders of content published by internet users, whenever they carry out “an act of communication to the public or an act of making available to the public a work or other protected content, uploaded by its users”.
It is now up to the platforms to make their “best efforts to ensure the unavailability of specific works and other protected subject matter for which rights holders have provided service providers with the relevant and necessary information.” They must also guarantee appropriate complaint resolution mechanisms, particularly with regard to legal exceptions to copyright, such as short quotations and parodies, caricatures, and pastiches.
The new legislation, the application of which is postponed until June 7, 2021, at the latest, thus encourages the conclusion of agreements between rights holders and platforms. It will then no longer be possible to allow platform users to distribute illegal content and only remove it upon request from the rights holders.
Just as the GDPR has revolutionized the rules governing the collection and processing of personal data since 2018, Article 17 of the European directive mandates the application and respect of intellectual property and copyright, in addition to privacy rights. To this end, it is incumbent upon stakeholders to guarantee the respect and effectiveness of these rights while maintaining the smooth operation of social networks and related platforms for their users.
