Michelle Mao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
Big-name celebrities like Halsey and Florence Welch of the indie rock band Florence and the Machine have taken to TikTok to discuss their discontent with the new marketing approach of creating viral TikTok audios as promotion.
TikTok has an established history of amplifying dance and music trends since acquiring the nearly identical app, Musical.ly. Its user base and viral power exploded during the COVID-19 pandemic. Raenelle Manning, an IPilogue writer and the author of part I of this two-part article series on TikTok Viral Marketing explains more about TikTok as a marketing strategy.
Halsey’s TikTok video details how she is unable to release music until she produces a “fake viral trend” to promote the new song. To the casual viewer, this type of restriction of her actions as an artist may seem to infringe on her rights as an artist. In fact, the top comment under her TikTok video expresses that Halsey should find a new record label that lets her release her music when she wants.
This sentiment plays into inherent feelings of property ownership and control over your property —in this case, your intellectual property (“IP”. But what are the legal underpinnings that tie Halsey’s (and other artists’) ownership and control of their music?
The short answer, as usual in law, is that it depends. While artists may inherently feel like they are “held hostage” by their record labels, it all comes down to the contract terms that both the artist and record label agreed upon. Common contract terms found in recording agreements include rights granted, producer royalties, and promotions. For artists and creators and their intellectual property, the nature of “property/product” over which they are exerting “ownership” impacts the traditionally recognized IP rights.
In a 1998 journal article by Raymond T. Nimmer, Nimmer describes IP law as a special existence between property law and contract law, where a product of the digital world is more closely tied to a contractual relationship on contractual terms rather than subject to property law guidelines for ownership and control.
Nimmer explains that contract law prevails over property law for digital property and products because digital products almost always involve a transfer of information or data, either by transferring information upon another or into the open forum of the internet. In this case, the information to be distributed is music, and the distribution methods are governed by contract because the commercialization of the song must occur to make a profit. To distribute/release music, the terms of the contract play a great deal in defining the intellectual property rights granted and restricted around the piece of music in question.
For Halsey, when responding to why she cannot release her music, despite it being “her song,” she tweets: “I can’t they own the masters.” This likely means that to commercialize her music and distribute it publicly, the contract between her and her record label granted IP rights like control over the release of music to her record label, rather than Halsey. In exchange, Halsey would gain access to distributing her music publicly, without being limited to the open-source forum route, which often removes any IP right from the creator.
Another way to think about the IP rights granted/restricted in the case of music ownership is through the (sometimes criticized) theory of IP rights as a bargaining space. In exchange for a product or service, IP rights may be given or traded away to the benefit of both parties. In his article, Professor David Vaver of IP Osgoode discusses the example of Pioneer Hi-Bred company, where patent rights are granted to inventors when they invent something that could benefit the public good. The bargain is for the exchange of exclusive IP rights to the inventor, and the government that grants the patent receives a product that would benefit their citizens.
Applying this framework, one could argue that Halsey bargained away her IP rights as a singer of the song to the record label in exchange for the resources that the record label offers. This would include specialized marketing, business expertise, and other commercial connections that a record company may have.
Considering artists speaking up against their record labels and attempting to establish ownership over their creative works, should these frameworks of commercialization and bargaining continue to define intellectual property in the music industry? There is good reason to revisit the framework of IP law commercially as digital products/creations/property become increasingly profitable and creators become more empowered to speak out for their creative freedom.
This article has a sister article on how TikTok marketing influences branding and artistic expression of artists in the music industry.