You have seen many advertisements on Tiktok, but there are companies starting to get in legal trouble because of it.
Key Takeaways:
- Check the License before using any creatives, including videos and music.
- Get the proper license or permission, if necessary.
- Be careful of vicarious infringement caused by influencer’s infringement of another’s rights.
Bang Energy was sued by the Universal Music Group for copyright infringement.
As part of Bang Energy’s marketing campaign, Bang engaged with social media influencers to post Tiktok ads that that included copyrighted music. You may think that Tiktok is a platform to upload content by using their music, however, you need to make sure Tiktok’s license covers your activities.
Tiktok’s License
Subject to the terms and conditions of the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to access and use the Services, including to download the Platform on a permitted device, and to access the TIkTok Content solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. TikTok reserves all rights not expressly granted herein in the Services and the TikTok Content. You acknowledge and agree that TikTok may terminate this license at any time for any reason or no reason.
https://www.tiktok.com/legal/terms-of-service-us?lang=en
Tiktok’s license generally provides a license for personal, non-commercial uses. Paying social media influencers to post advertisements about the Company are commercial uses because there is some financial compensation to the social media influencers, especial since they are for brand promotions. Thus, the use will not be in the scope of the license.
Copyright
Without the proper license, the use of copyrighted videos and music for advertisements may be considered infringement. To determine infringements, there is the typical fair use factors that need to be analyzed to determine copyright infringement.
Vicarious Infringement
Even when you pay social media influencers to post videos and do not have any part in the creation of the video, an infringement may be considered vicarious infringement.
Vicarious infringement occurs when another person has infringed on another’s right, however, a third party may be liable because of their involvement with the initial infringer. This includes profiting from the infringer’s infringement and approving the works that include the infringing work.
For example, in the case of Bang Energy, the court determined Bang Energy was vicariously infringing on UMG’s rights when they hired social media influencers to post advertisements using UMG’s music. Bang Energy profited from the social media influencer’s post and payment was conditioned on Bang Energy’s audit team’s approval.