It seems like everyone has a to have a take on TikTok these days, including David C Lowery over at The Trichordist who chimes in to argue that along with the US treasury getting ‘key money’ songwriters should also get tehir share of the spoils of a forced sale of the platform:
Songwriters have been forced to finance the hyper growth of the social media phenomenon. So why shouldn’t they be rewarded like any other venture capitalist? Further why should the venture capital firms like SoftBank be rewarded for knowingly financing an apparent criminal RICO racket. Give songwriters their share. […] Given the scale of the apparent willful infringement and the rumored $30 Billion price tag for TikTok. Two billion dollars is quite reasonable.
Lowery argues that songwriters have seen no income from TikTok (while music publishers and record labels have managed to make deals). And while it seems that this description is largely accurate, it is also worth noting that in the EU collective management organisations representing songwriters are still in the negotiations with TikTok. As the IPkat notes:
The music industry and collecting societies for rights in musical works have been trying to negotiate agreements with TikTok, threatening legal action against the social media platform for copyright infringement in the absence of such an agreement. They want to see songwriters, composers, musicians and artists directly remunerated for the use of their songs on the social media platform by way of royalty payments.
Last year, ICE (a joint venture representing the digital music rights of PRS in the UK, GEMA in Germany, and STIM in Sweden) attempted to reach an agreement with TikTok that ended up being referred to the UK’s Copyright Tribunal in July 2019. However, by December 2019, the dispute was withdrawn from the tribunal, as the parties announced that they would be entering into arbitration to agree the terms of a licensing deal that would include retrospective use of copyright material on TikTok. The outcome of the arbitration is yet unknown.
It will be interesting to see which approach will result in songwriters getting paid. My money is on the EU collecting societies, rather than on President Trump suddenly starting to care about poor songwriters.
In the meanwhile the IPkat entertains the question if TikTok videos qualify as parodies and are thus covered by the - now mandatory - parody exception:
This Kat is wondering if the videos created on TikTok are parodies? In the UK the government guidelines say that a parody for the purpose of the copyright exception is “a comedian may use a few lines from a film or song for a parody sketch.” They UK law states: “Fair dealing with a performance or a recording of a performance for the purposes of caricature, parody or pastiche does not infringe the rights conferred by this Chapter in the performance or recording.” Does a 13 second sound clip, used for the purpose of a musical-meme qualify?
Does a 13 second sound clip, used for the purpose of a musical-meme qualify? This Kat consulted Sabine Jacques’ book on Parody; where she says “a parody is something distinct from a mere re-working or altered copy. A parody communicates a new distinctive message from the earlier work it reproduces, and typically results in the creation of a new expression which may be eligible for copyright protection.”
We know that, at least under Chinese copyright law, these videos can be eligible for copyright protection. Perhaps some of the videos uploaded to TikTok might be considered a parody – for example, when a user creates a funny lip-syncing video using a sound clip from a reality TV show, to create a new scene. However, when users simply copy a dance routine to a song, this Kat is of the opinion that this is simply a re-working and does not create a new distinctive message. Therefore, whilst it is possible that some of the user’s videos fall within the parody exception, probably most of them do not. In any event, it would seem that even if the users’ videos were considered parodies, that TikTok’s use of the sound clips still require a copyright licence.
As i have argued elsewhere, it seems to me that the pastiche exception would be a much better fit for the creative practices that have developed on TikTok. In a recent paper Prof Martin Senftleben has argued that the various definitions of “pastiche” are a surprisingly good fit for what is happening on TikTok:
The Merriam-Webster English Dictionary defines “pastiche” as “a literary, artistic, musical, or architectural work that imitates the style of previous work.” It also refers to a “musical, literary, or artistic composition made up of selections from different works.”69 Similarly, the Collins English Dictionary describes a “pastiche” as “a work of art that imitates the style of another artist or period” and “a work of art that mixes styles, materials, etc.”
As Senftleben outlines in his paper, a remunerated pastiche exception could serve as a way to ensure that creators remain free to post to TikTok while at the same time making sure that songwriters, composers, musicians and artists would be remunerated for the use of tehir works on TikTok (and other platforms). Seems to me that such an approach is much preferable to the current state of affairs described above.