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Is Your TikTok Video Violating Copyright Laws?

By Catherine Hodder, Esq. on September 26, 2022 1:21 PM

Unless you live under a rock (or don't know any teens or tweens), TikTok is a popular social media platform. TikTok began as the Chinese social media app Musical.ly, which allowed users to post short videos of themselves lip-syncing to music. Musical.ly merged into TikTok in 2018 to become the internet phenomenon it is today.

Among the most popular TikTok content are choreographed dance videos, cute animal videos, and viral challenges. Remember the ill-fated TikTok 'Tide Pod Challenge" circa 2018?

TikTok is an entertaining and powerful tool to market your brand. Over 3 billion people have downloaded the app, and TikTok boasts over 1 billion active TikTok users. Advertisers pay influencers and use TikTok's algorithms to target content for their audiences.

However, there are issues regarding intellectual property and copyright violations, especially if TikTok is used for commercial purposes. Recently, a court found that energy drink maker Bang Energy posted social media ads infringing on copyrighted music owned by Sony Music Entertainment.

What Is Intellectual Property?

Intellectual property covers any original work of authorship, design, or invention. Intellectual property law protects these unique productions through copyrights, trademarks, trade secrets, and patents.

For example, Coca-Cola is a recognizable brand that many competitors would like to copy. A trade secret covers Coca-Cola's recipe, and a trademark protects the red-and-white script "Coca-Cola" logo. Their glass bottle's unique shape has design patents, and Coca-Cola has copyrights on all their ads and commercials.

Copyright law covers original works of authorship that are "tangible forms of expression." Once someone creates an original piece such as a song, screenplay, or book, they own the copyright to that original work. However, they should apply to the U.S. Copyright Office to register a copyright on that work to prove they are the author. Copyright registration allows the author to enforce copyright protection against anyone who infringes on their work.

Copyright infringement occurs when someone else tries to use that work without permission from the copyright owner. In the Sony Music v. Bang Energy case, the court found that Bang Energy used music that belonged to Sony without a license.

What Is the Fair Use Exception?

A defense to copyright infringement is the "fair use" doctrine. Under copyright law, you are allowed unlicensed use of otherwise copyrighted work in certain circumstances, such as

  • Criticism
  • Commentary
  • Parody
  • News reporting
  • Education (i.e., teaching or scholarship)
  • Research

A court considers other factors such as the nature of the work, the amount of work used, the purpose for the use, and whether it substantially deprives the copyright owner of income. Because Bang Energy used the music to promote its energy drink in TikTok videos, the "fair use" exception does not apply.

How To Legally Use Music To Make TikTok Videos

Most people use TikTok to upload entertaining videos and music. That is OK if you use music that is not subject to copyright or have permission to use the music. There are three ways to use music on TikTok legally:

  • Use the General Music Library on TikTok's website for music and sound effects.
  • Upload your own music.
  • Use music with permission from the copyright owner.

When you use the General Music Library on TikTok's website, it should be for personal and noncommercial use. According to TikTok, "Songs in our General Music Library are not pre-cleared for commercial content — defined as any content posted by a brand — and are not available for use by any brand or business."

If you are using music that has copyright protection, TikTok can remove your post. Frequent violations may result in suspension or removal of your account.

How To Legally Use Music on TikTok To Promote Your Commercial Brand

Content creators use TikTok to promote brands or products and generate publicity. The problem arises when creators or influencers use copyrighted content, violating TikTok's Terms of Service.

If the purpose of your video is to market, advertise, or publicize your business or brand, use the following guidelines:

  • Follow TikTok's Advertising Policies in TikTok for Business.
  • Go to TikTok's Commercial Use Library and make sure the option for "TikTok Commercial Usage" is checked. TikTok has licensing agreements with musical artists in their commercial music library, meaning you can use their music royalty-free.
  • Upload your own original music and compositions.
  • When posting content, make sure there is no background music subject to copyright protection.
  • If using outside content (not in TikTok's Commercial Use Library), get permission from the copyright owner.
  • When uploading a video, allow TikTok to run a copyright check on your sounds. They allow you to edit before posting.

How To Enforce Intellectual Property Rights on TikTok

However, what if your own music appears on TikTok videos without your permission? If that happens, you can report infringing content to TikTok directly.

In 1998, Congress enacted the Digital Millennium Copyright Act or DMCA. This act addresses copyright issues on the internet and allows copyright owners to give notice and takedown requests to online service providers about infringing material.

  • Go to the Copyright Infringement Form on TikTok.
  • Enter your information.
  • Show proof of copyright ownership (i.e., a certificate or licensing agreement).
  • Report details of copyright infringement (i.e., the content that was infringed upon).

Tiktok recognizes only takedown requests from copyright owners and their legal counsel. So you may need to seek legal advice to enforce your copyright.

Violating intellectual property laws and copyrights will not only get you in trouble with TikTok's copyright policy, but copyright holders might also sue you. The music industry has a significant interest in music licensing and will enforce copyrights against unauthorized use.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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