TikTok and the law of the jungle: keys for television and production companies

Patricia Mariscal, abogada en Bardají&Honrado, aborda las precauciones que televisiones y productoras deben abordar al generar y compartir contenido en TikTok desde el prisma legal.

It is often said that trying to preserve the rights of the content that circulates through internet It's like trying to put doors into the countryside. Once a certain content is uploaded to the Internet (with or without the consent of its owner) it becomes very difficult to control its spread. In the case of social networks, this problem multiplies exponentially, since they are born precisely with the vocation that the contents are disseminated on a daily basis. as many times as possible by as many users as possible.

In this article, we focus on the social network TikTok, but most of the issues we point out are also applicable to other platforms, like, for example, Instagram. We have taken TikTok because it is perhaps the one that allows uploading greater audiovisual content in one go (up to 10 minutes!), which lends itself, if not to a greater number of violations of rights, to more flagrant violations.

When we talk about violations of rights on social networks, we are basically referring to the intellectual and industrial property rights (mainly brands) that generate some content and to which image rights of people that appear in the videos. These infringing behaviors can occur within the social network itself (for example, uploading 10 minutes of video of a music concert) or outside it, when elements of TikTok are taken to spread them in other media without the consent of the person who uploaded them to a social network (for example, a TV magazine that shows content from an anonymous person's social network). Let's look at both assumptions.

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What can and cannot be uploaded to TikTok?

The answer is no different from that of any other social network, and in fact the company's own intellectual property policy makes it very clear: TikTok does not allow uploading content that infringes copyright.

In some cases, the existence of infringement is evident; There should be no doubt in anyone's mind that uploading half an episode of SpongeBob It is not legal, nor is it legal to enter a movie theater, make a video of the film and upload it to the network.

However, there are behaviors that may raise doubts. For example, TikTok gives the possibility of incorporating videos into music from your library (as long as they are not commercial in nature and are not exploited outside the platform), or that it is the user themselves who sets the soundtrack or incorporates their own music. In this second case, although TikTok offers that possibility, the user must know that they will not be able to use commercial music in their videos. without the authorization of the owners, regardless of whether the video you have uploaded has a commercial purpose or not, although even more so if the video has an advertising purpose or promotes a product or service.

Authorizations, memes and video replicas

On the other hand, there are certain uses, originally illicit, that, due to the impossibility of controlling them and because they are considered relatively harmless to copyright, have been assumed as permitted uses, and even new limits on copyright have been regulated to accommodate this type of manifestation. I am referring to the memes, gifs and similar animations. Under Spanish regulations, these types of creations, even when they use elements protected by copyright, would be covered under the “pastiche” limit.

Whatever the case, it is the user who must take the necessary precautions before uploading their video to TikTok and get the relevant authorizations, if this were the case, then the fact of uploading it to the social network does not “whitewash” the illegality of the act.

Although he reused video by other users was considered offender and it removed from the platform, I wouldn't drag the new “copies” made by users who reused those videos to create your own content.

In the face of situations of rights infringement, the social network makes available to anyone who sees their copyright infringed a system of notice and take down, similar to that of other platforms such as YouTube, through which the owners can assert their rights requesting the removal of the infringing content from the platform. Once the claim is received, it is transferred to the person who uploaded the content so that they can allege and/or provide the documentation they consider and it is finally the TikTok team that determines the removal or restoration of content.

It sometimes happens that, even when the original content has been removed from the network, very similar videos and violators can continue to circulate on the platform for a long time. This is because TikTok allows users to configure their profile so that the rest can interact with your content, specifically through the functionalities of Duet, which consists of reusing a video from a third party to make an imitation and display both on a double screen, and Stich, which allows users to use fragments of videos published by other users and insert them into their own videos. In these cases, even if the reused video was considered infringing and was removed from the platform, it would not drag the new “copies” made by users who reused those videos to create their own content.

Can't even get on a TikTok protected content without the authorization of the owners, Not everything on TikTok can be used freely in other media.

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Is the content published on TikTok free to use?

In any case, what the rights holder of content uploaded to TikTok without their consent can't control In no way is the video leaving the platform and being disseminated through other media. In fact, TikTok offers the user the possibility of sharing the video directly on other social networks such as Twitter or on messaging services such as Telegram or Whatsapp.

And it is at this point where we ask ourselves if everything that is published on social networks, openly, can be used in other different media, such as television. In addition to the implications that this has from the point of view of copyright, it is interesting to also address the issue from the point of view of image rights, since it is common for recognizable people to appear in the videos uploaded to TikTok.

Does the fact that a person posts a video on TikTok, openly and without any type of restriction, mean that it can be used freely without the need to obtain authorization? The answer is emphatically not, both from the point of view of copyright, and from the point of view of image rights, if applicable. With regard to copyright, it will be necessary to obtain the consent of rights holders on any protectable content that is integrated into the video (musical compositions, performances, plastic works...), in addition to the owner of the recording (which, we clarify, is not TikTok).

The image on TikTok

As far as image rights are concerned, the authorization of all anonymous people who appear in the video and are identifiable is required. When the person who appears is a public figure, their image may be used as long as it is used in the context of a newsworthy event and the image or recording has been made outside the private sphere of the public person in question.

The use of images and videos from social networks in which people appear who become public for some reason has already been addressed by our courts on several occasions. The Provincial Court of Palma de Mallorca, on May 26, 2022, handed down a ruling in which it confirmed a sanction of 30,000 euros to a television station for the broadcast in a news program (not even entertainment) of images of an anonymous person who had been accused of a crime against public health. The images had been taken from the social network of a relative of that person and had no relationship with the commission of the crime. One of the chain's defense arguments was precisely the fact that the images had been uploads to the social network by a relative of the accused (therefore assuming their consent) and had been published openly without any type of restriction, so that anyone could access them.

Publish a video of TikTok in which the person can be identified by their profile name could also constitute a violation of your right to your own image.

However, the Provincial Court confirmed the illegitimate interference in the fundamental right to the accused's own image, since, even though the information about the crime committed was of public interest, the images that were used to illustrate the information had no connection with the newsworthy event. He also considered that the fact that they were on a social network accessible by third parties did not imply that the accused had given his consent for any public communication of the images in other media, and less on a prime time television show.

In relation to the above, it must be taken into account that the The concept of image as a very personal right is very broad, and covers not only the physical image of the person, but also other elements and attributes that allow them to be identified, such as their real name or even their profile name on a social network. Therefore, publishing a TikTok video in which the person can be identified by their profile name could also constitute a violation of their right to their own image.

In short, although it may seem that on TikTok and other social networks the law of the jungle, the regulations on intellectual property and image rights are full application also in this area and, therefore, nor can protected content be uploaded to TikTok without the authorization of the owners, nor can everything that is on TikTok be used freely in other media.

Patricia Mariscal

Lawyer at Bardají&Honrado