Weird but true: some of the biggest, most famous TikTokers have built real careers off using other people’s ideas. The very basis of the clock app challenges who can ‘own’ a creative idea, who can use or profit from it, and the laws that govern it all. When a collective of BIPOC choreographers are taking an innovative approach to copyrighting their TikTok dances, it sparked more questions than answers. Like, how do copyright laws actually work on TikTok, can you really sue someone for not giving credit… and could your videos put you at risk of a lawsuit?
Get your notepads ready – we’re going to (attempt to) explain everything you need to know about copyright laws on TikTok and social media.
How does copyright law work?
It varies from country to country, but copyright essentially gives individuals or organisations the right to control, protect and exploit their literary or artistic works. Copyright owners can prevent others from copying or communicating their material without their permission. But! Copyright only protects the expression or presentation of the idea – it does not protect the ideas, concepts, styles or techniques themselves. This is known as the idea-expression dichotomy.
For example, copyright will not protect the concept for a movie (the idea), but it may protect a script for that movie (the expression of the idea).
In Australia copyright protection is automatic. Protection kicks in as soon as it is put into material form, such as being written down or recorded in some way e.g. filmed or recorded.
In the U.S. there are three criteria that a work must pass in order to be protected by copyright laws: originality (it can’t be a copy of something else), creativity, and fixation (it exists in fixed form, like a recording or in writing).
How do copyright laws apply to Tik Tok?
Ashleigh Boyce, lawyer at Dundas Lawyers, explained that for TikTok specifically, people are governed by the Terms of Service that apply for their region. “The relevant terms for Australia are governed by the laws of Singapore, and any dispute arising from them is to be resolved by the Singapore International Arbitration Centre. Because of this, Australian users of TikTok are subject to Singaporean copyright laws – not the Australian laws.”
TikTok does help creators avoid copyright infringement on audio by having licensing agreements with music companies. But when it comes to ideas and dances it’s a bit more complicated.
According to TikTok if you’ve created content on its app, you own it. So, your TikTok videos are your property. So if you have taken content from an external source and incorporated it into a TikTok video – like, say a clip from a movie or TV show – you may actually be infringing someone else’s rights.
When it comes to creative ideas, like starting a new trend or a dance on TikTok, copyright only protects the fixation or expression. In other words, you can receive copyright protection for the recorded expression of your idea – so, your individual video – but not the idea itself.
@brandon_powers CREDIT BLACK CREATORS #choreography #choreographer #dancers ♬ original sound – Brandon Powers
Is it possible to enforce?
Short answer? It depends. Copyright is extremely expensive to enforce through the courts. When there is a clear use of copyright material – like reposting of movie clips – TikTok can be asked to take down the video. But only 0.5% of the 81 million videos removed this year were due to copyright violations.
For other creative ideas that are born on the app itself, there is a lot of grey area.
With over 1 billion users, a lack of functionality and the copycat nature of the app itself, it can be almost impossible to pinpoint where an idea originated, and by whom. On top of that, copyright law allows for others to create ‘new expressions’ of a work – but what constitutes a new expression? Some regulators consider a new setting (your bedroom versus their backyard) or different number of performers to be a new expression (a solo dance versus a group).
On top of that, Boyce points out that the Australian Copyright Act 1968 does allow for others to produce ‘fair use’ of your original work in certain circumstances: for criticism or review, parody or satire, reporting the news, or for research. But again, she warns all TikTok users to be aware of the T&Cs: “The same exceptions may not apply in Singapore.”
Are your TikToks putting you at legal risk?
Here’s the thing: just because it’s available on TikTok, doesn’t mean it’s legally free to use.
TikTok has some liability for what it makes available on the app, and has violated copyright before. Bev Standing, the woman behind the OG text-to-speech voice feature sued the app in May 2021 for using her voice without permission. Standing originally recorded the audio for the Chinese Institute of Acoustics to be used solely for translation purposes. TikTok used her recording for their translation feature, but when her voice began to be used for comedic purposes including “foul and offensive language”, Standing took action against Bytedance for intellectual property theft. In September, they agreed to settle the lawsuit.
That could put users (that’s you) at risk if copyright owners choose to target individuals instead.
Earlier this month when Gladys Berejiklian’s public ICAC hearings were underway, audio from her tapped phone calls took over the app. The ICAC live streams are not allowed to be recorded or shared in any form, except for public reporting on the hearings. News Corp publication news.com.au first uploaded the phone taps to TikTok – strictly reporting it as news, which is allowed.
But from there, other individual users made videos featuring the audio – including bigger creators like Brooklyn Taylor aka Sooklyn, and DJ Candymoore who used it in a remix. Is a copyright lawsuit against those users likely? Probably not. But is it possible? Yes.
@sooklyn I wish this recording was fake lol I LOVE AUS POL
♬ original sound – News.com.au
Is it worth taking legal action?
Going through the legal system to claim copyright for content – whether on TikTok or not – is complicated and expensive.
“Creators could sue each other, however whether it is worth it depends on what loss they have suffered. If the original owner was making money off the video or can prove that they would have profited had their copyright not been infringed, they may be granted an injunction [instruction to take down the video] and either damages or an account of profits,” Boyce explains.
“It is unlikely to be worth spending the time and money on seeking an injunction without damages or account of profits as, by the time an injunction is granted against one person there is likely to be hundreds or thousands of copycats.”
It’s not surprising that we’re seeing creators taking justice into their own hands with a strict honour code of “giving credit” now in place. Users and creators are policing this themselves, calling out influencers who routinely ‘steal’ content to fuel their own careers – from comedy personality Neumane (real name Kane Trujillo), to new celebrity Addison Rae, and infamous copycat ‘designer’ Danielle Bernstein (otherwise known as We Wore What).
Legal recourse remains mostly exclusive to those with significant wealth and privilege, so demands for credit can be seen as TikTok users leveraging their only asset to ‘protect’ their creative ideas – public platform. Of course, there is risk in that strategy too.
At the end of the day, it’s your responsibility to weigh up the risk and rewards of anything you create for digital platforms. Part of that is respecting the original creators of work you’re tempted to re-use, remix or recreate. Copyright laws were created to promote the progress of art and creative work – apps like TikTok are undeniably part of that progression.
