TikTok is known to be the new and popular platform for sharing all types of content, from memes to DIY videos. While its popularity spiked during the 2020 lockdown, it’s clear that it won’t be going away anytime soon.
Unsurprisingly, small businesses and influencers have used this to their advantage. But what does it look like from a legal standpoint?
We know platforms like Youtube have heaps of regulations around content use and copyright infringement, which is a natural response when it comes to managing loads of personal content and the freedom to share that as you please. So, what makes TikTok any different?
The simple answer is that it’s not. TikTok is still subject to copyright laws in Australia, but they don’t seem to be as strict as it’s a relatively new platform.
IP and copyright on TikTok is quite interesting for a few reasons. One the one hand, it also encourages collaboration between creators – for example, stitches, sounds and duets, which allows users to reuse other creators’ content without any issues.
On the other hand, improper use of copyrighted material seems to fly under the radar relatively easily, for example, where users post visual/audio recordings of copyrighted material as part of their video (including recordings of a tv or laptop screen).
So, let’s go through how copyright actually works on TikTok, and how this would affect businesses and influencers alike.
How Does Music Copyright Work?
Any platform with large volumes of organic content would draw a lot of attention to copyright infringement laws and royalties. But it can be difficult to know When You’re Infringing Copyright, so it’s important to understand how this works on a platform like TikTok.
So, What Is Copyright?
Copyright protects the expression of ideas, but not the actual idea itself. This kind of protection is automatic. So, as soon as that idea is expressed in some tangible form, it’s protected by copyright in Australia. In other words, You Don’t Need To Register Copyright In Australia.
When you infringe copyright, whether you intended to do it or not is irrelevant. So, it’s worth looking closely at the Copyright Act 1968, which governs copyright in Australia. For example, it establishes that you’d be infringing copyright if a substantial part of the copyright is found in your content.
Copyright can be a tricky area to navigate, so we’ve written more about it here.
Is Music Copyrighted On TikTok?
Generally speaking, the music available on TikTok can be used without the risk of infringing copyright. Why?
TikTok has a number of licence agreements with various artists, so they have the right to offer the use of that music to end-users (so, this includes businesses and influencers). As long as this licence is in place, they won’t be faced with any legal action (we’ll cover this in more detail shortly).
In 2020, TikTok made some minor changes to the way businesses can use music. Before, content creators could add any song they wanted to their videos without having to pay anything. This is because of the rules that were established back when TikTok was known as Musical.ly
Now, verified businesses have access to a Commercial Music Library which contains royalty-free music. This means they can’t actually use the same licensed music as regular end-users.
Is It Legal To Use Songs In My TikToks?
Yes, it’s completely fine and legal to use songs in your TikToks, as long as they’re taken from the app and not from somewhere else. As we mentioned, this is because TikTok has a Copyright Licence Agreement or IP Licensing Agreement with labels and artists to use their music on the platform.
This just means that the artist gives TikTok permission to use their IP in return for royalties, but this is subject to the terms set out in that agreement. This kind of agreement might cover some of the following things:
- Which countries will or will not have access to certain songs?
- How long will the music be licensed for?
- Can it be revoked?
- How will royalties be paid?
- Can the music be sub-licensed?
We’ve written more about Copyright Licence Agreements here.
Can I Add My Own Music?
- If it is your original music, then yes.
- If it is “copyright free” or “free for profit” music, technically yes but probably steer clear. This is because it’s extremely hard to find truly copyright free music and there is almost always copyright attached to a work.
- If it’s someone else’s song you want to upload which isn’t already on the TikTok library, then definitely no.
Technically, you can upload a song to TikTok that isn’t already in their library, but this carries a risk of using copyrighted material and your work can be taken down. Why?
Like we mentioned before, TikTok’s library of music is safe to use in videos because they have the appropriate licensing agreements with labels and artists. This means they have their permission to share and distribute their IP on the platform.
So, if you decide to upload music that isn’t on TikTok, you could be uploading music that you don’t have the right to use under an IP Licensing Agreement.
TikTok’s Intellectual Property Policy outlines that TikTok does not allow “posting, sharing or sending any content that violates or infringes someone else’s copyrights, trademarks or other intellectual property rights.” In this situation, you’d be infringing copyright and face legal action since there’s no guarantee of that music being copyright-free.
How Can I Avoid Copyright Infringement On TikTok?
Now that we’ve covered how copyright works on TikTok, how can you avoid copyright infringement?
Well, the first thing you need to do is review your content before you publish it. You’d want to ask yourself the following questions:
- Did the music come from TikTok, or did I upload it separately (be careful of even having songs playing in the background e.g. from your radio, as this could likely breach copyright laws too)
- Where did I film the video? (If it is at a place like a historical site, you might need permission before posting)
- Who is in the video? (You might need people’s permission to include them in your video)
- What images or video footage are visible in my video? (If they are someone else’s images, these would be protected by copyright too.)
Your safest option would be to only use sounds and music that is already on TikTok, rather than uploading your own. If you’re a verified business on TikTok, remember that you are only allowed to use their royalty-free music under their updated policy.
The key takeaway here is that you should always be 100% sure that the content you’re uploading is either:
- Your own content
- Someone else’s content, but you have their permission to use it (this may be through a licence)
If you’re someone who has published content on TikTok, and you suspect that someone has used that content without your permission, you can file a Copyright Infringement Report and have that content removed.
Who Owns My Video On TikTok?
If you’ve created content, you own it! So, your TikTok videos are your property. However, be wary of TikTok’s End-User License Agreement (EULA), which allows TikTok to distribute and share your content as they wish (we’ve written more about EULAs here).
I Use TikTok For My Business – What Legals Should I Consider?
If you’re a verified business that uses TikTok for content creation, it’s good business practice to stay in touch with a lawyer so you can ensure compliance with your obligations. In particular, you want to make sure the content you produce is not infringing copyright in any way.
If you want to make sure your content is copyright protected, you also need to ensure that its format is valid (remember, ideas can’t be copyrighted but the tangible expression of it can).
If you’re an influencer on TikTok, it may be worth looking into an Influencer Agreement as this is quite a regulated area. With copyright becoming a major concern for businesses and end-users alike, you want to make sure you clearly set out your obligations and rights too.
Influencers and the content they post is regulated by the Australian Association of National Advertisers (AANA) Code of Ethics. It sets out some ground rules around the kind of content they can post and what they need to disclose, like whether it is a paid partnership or not (we’ve written more about these regulations here).
If you’re on TikTok, your Influencer Agreement should cover things like:
- Scope of work – what are they expected to include in their content? How often are they expected to post? What is the process prior to uploading content?
- Who owns the content they create – you may want to look into a Deed of Assignment
- Copyright infringement – what happens if the influencer infringes copyright? Who is responsible?
- How you will get paid – do you need a Profit Share Agreement?
- Are you (or the other party) an independent contractor or employee?
- Non-compete clause
The Future Of TikTok
Compared to platforms like Youtube, TikTok is still quite young. As we know, over time, Youtube increased the number of regulations to minimise copyright infringement and other issues around IP.
So, how do we know what TikTok has planned for ensuring compliance of a similar nature?
Well, the simple answer is that we don’t. But we’re already starting to see some legal issues arise.
For example, you may have heard that the woman behind the text-to-speech voice feature sued the app for using her audio. Bev Standing had originally recorded the audio for the Chinese Institute of Acoustics long before TikTok’s sudden popularity. When she saw that her work was being used for comedic purposes and not for translations (which was what she had agreed to), she took legal action against TikTok for intellectual property theft.
A similar situation arose with Trello, when they discovered TikTok had added a popular green screen feature that was identical to the one Trello had patented in 2017. These issues of intellectual property theft are bound to come up rapidly, given TikTok’s seemingly lenient rules around copyright. We should expect to see a change in these rules to accommodate appropriate IP use.
As such, content creators should always be prepared for what’s to come.
It’s best to stay in touch with a good lawyer with the right knowledge and experience, so you can ensure that you remain compliant with copyright laws and you can avoid any potential headaches down the track.
Sprintlaw has a team of experienced lawyers who can help you out with your legals, whether it be for TikTok or any other online platform. After all, copyright and IP can be a tricky area to understand, especially if you’re producing all sorts of content for your business.
You can reach out to us at firstname.lastname@example.org or contact us on 1800 730 617 for an obligation-free chat.
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