TikTok Made me Buy It: Influencer Marketing and Copyright Infringement Issues

Picture this: It’s a Sunday afternoon and you’re a law student avoiding your Copyright readings. Instead of cracking open the textbook, you decide to scroll through TikTok, where you come across a video of a girl dancing. She’s wearing flared yoga pants and a crop top. Remember when those pants were a staple piece in every millennial’s wardrobe? You chuckle to yourself because they look ridiculous and you cannot believe they’ve made a comeback. You continue scrolling and come to realize that every pretty girl on your feed is wearing them. Should you cave and buy a pair?

This is how influencer marketing works. When big brands pay popular people to wear their products, clothing sells.

If you aren’t already familiar with TikTok, it’s a video-sharing app which has over one billion downloads worldwide. While the platform allows for the creation of original content, users are mainly encouraged to recreate existing videos by capitalizing on trending sounds.

From a copyright perspective, this feels like blatant infringement, especially when teens like Charli D’Amelio have built entire careers dancing along to the songs of other artists.

Although TikTok has licensed the right to use the music, according to the website’s Terms and Conditions, this right only extends to users who make videos for non-commercial use.

The problem is that many of these TikTok celebrities have partnered with major brands who participate in influencer marketing. Since the app is popular among younger demographics, aged 18-25, companies pay users with large followings to make sponsored posts promoting their products. These users, who make videos for commercial use, could face multiple copyright infringement claims from artists.

TikTok’s Terms and Conditions are quite concerning alone, especially for emerging artists who hope to get their big break on the app. Although creators own the copyright to their content, TikTok retains the:

“Unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.”

These Terms and Conditions make it clear that after uploading an original song, users grant TikTok reproduction and performance rights, without royalties.

This undermines the purpose of copyright law, which is meant to protect original literary, dramatic, musical, and artistic works. Many music associations including the National Music Publishers Association (NMPA), have pushed back, threatening to sue TikTok for its lack of transparency and constant violation of copyright.

Just last year, NMPA signed a copyright licensing agreement with TikTok, which gives members the ability to opt-into a licensing framework that allows them to receive compensation when their songs are used on the app.

However, lesser-known artists who are not members of these collectives continue to unknowingly sign away their rights, while young influencers simultaneously run the risk of infringement.

So the next time you post content on TikTok, or any social media platform, perhaps take a longer look at the terms you never read but always “agree” to. It only takes a minute but could save you a fortune.

Shayna Jan is a second-year student at Osgoode Hall Law School and a guest contributor to the IPilogue.

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