“I’d Let You Had I Known It / Why Don’t You Say So?” – Intellectual Property and TikTok

Carina Devairakkam-Brown

With an approximated value of $75 billion, TikTok is both a rapidly rising player in the social media landscape and a constant reminder to millennials that we are inexorably marching into an utter inability to keep up with trends, much less set them. For those of us who may not know or care to understand, TikTok is a social media app that functions somewhere along the spectrum between Instagram stories and Vine. It is a video-sharing platform comprised of dance trends, challenge videos, short form comedy, “life hacks” and DIY instructional videos.

TikTok also trades on shared audio. Users record videos of themselves and sometimes others lip syncing to popular sound clips, which are fair use for any user under TikTok’s Terms of Service.[i] Users are encouraged to use audio in this manner – at the bottom of every video, there is a link to the original source of the audio in the clip (even if the source is the immediate video). Clicking the link grants the watcher not only access to the audio, but the ability to incorporate it as an element of their own video.

While this sharing of common video elements makes for a fun and collaborative social media experience, it also opens the door for widespread propagation of intellectual property infringement in a way that’s almost novel in the social media space. The use of pop music in lip sync or dance videos is only one part of it, and is more easily managed: TikTok itself licenses the music from studios who it seems recognize the marketing potential the platform has., despite the fact that it is currently largely un-monetized, at least with respect to advertisements.[ii] (In the hours of “research” that I did for this piece, I only came across one ad, which plays when the app is open and seems to be optional.) Some of the studios have gone farther, hiring prominent TikTok participants and using them as a kind of channel for product placement.

Aside from the use of pop music, however, is the more complicated issue of TikTok users taking audio from YouTube videos and Instagram posts. Certain non-TikTok content creators have objected to the unlicensed and uncredited use of the audio from their popular videos – at the top of my mind is YouTube personality Sailor J, who last year took to commenting personally and repeatedly on the TikTok videos that used her audio from the popular video “Contouring 101.”[iii] At this time, seemingly the only recourse for such artists is to send TikTok a takedown notice, about 85% of which are honored. [iv] Sailor J didn’t even know that the audio from her video was being used until months after the use had become popularized.

In the fall of 2019, the National Music Publishers Association (“NMPA”) piggybacked onto a call for deeper formal investigation into the practices employed by TikTok and its users. The original call was brought as a result of TikTok’s censorship policies. The NMPA’s demand takes a slightly different approach, focusing more on the copyright law implications of TikTok’s model.[v] The letter claims that despite the arrangements that TikTok has established with some recording companies, it still remains a hotbed of copyright infringement as a result of the deals it doeosn’t have with other record companies, and the unauthorized use of audio pulled from other user-generated internet content.[vi]  What’s more, the NMPA contends that TikTok disproportionately harms songwriters and publishers.

Whatever the outcome of this call for governmental investigation and action, it seems clear that TikTok’s model of consolidating and capitalizing on meme cultures is stirring up some controversy in the field of intellectual property protection, and perhaps exposing some of the ways in which the current means of copyright enforcement are ill-equipped to deal with infringement and artist protection in the digital age.


[i] Available for reference at https://www.tiktok.com/legal/terms-of-use?lang=en

[ii] Emma Gray Ellis, TikTok is a Short-Form Monetized Musical Meme Machine, Wired (Nov. 30, 2018). https://www.wired.com/story/tiktok-musical-meme-machine-vine/

[iii] Sailor J, Contouring 101, YouTube (Oct. 24, 2017) https://www.youtube.com/watch?v=zJaaLXZwmsU

[iv] Meg Hanson, TikTok at Your Own Risk: The Case of Sailor J and Stealing Art on TikTok, (Feb. 13, 2020). https://www.popdust.com/sailor-j--tiktok-copyright-2645143066.html

[v] Stuart Dredge, NMPA throws weight behind possible US investigation into TikTok, Musically (Oct. 17, 2019). https://musically.com/2019/10/17/nmpa-throws-weight-behind-possible-us-investigation-into-tiktok/

[vi] Id.