TikTok, Clock Ticks?

TikTok is a video sharing application that allows users to create and share 15 second videos, owned by the Chinese company ByteDance, after merging with its predecessor- Musical.ly. The App allows its users to record their reactions to videos and further edit them with filters, music, animation, special effects etc., and like all other social applications, other users can share, follow, like and comment on everything that they see.

However, a major flaw in Tiktok’s business plan seems to be that they do not offer any substantial means to the creators to earn directly through the App. The App does not pay or offer any incentives to the creators, and the primary way that the creators on TikTok generate money is by shifting their fan base to other paying Apps like YouTube, Instagram, Snapchat and Twitter[1]. Athough, currently, TikTok is free and without any advertisements.

Therefore, in order to be a successful TikTok influencer, creators need to first create an interesting TikTok account with substantial content to generate as many followers as possible. To do this, creators are required to follow and create content based on the songs and concepts trending on the internet. Once a fan-base has been established, creators link their YouTube, Instagram, Snapchat and Twitter accounts to their TikTok account. If the creator can successfully do so, based on the views and engagement count on their accounts on the other platforms, the creators may be approached by various brands and sponsors to showcase their products, by offering money in exchange for promotions.

This brings us to the legal bit of the article, i.e. is TikTok liable under The Copyright Act, 1957? Primary of the TikTok content consists of videos using music from the App’s official library containing the licensed content- which is fine. The problem arises because TikTok also allows the users/creators to upload their own audio, and further edit them on the App. For all the songs being featured and used on the TikTok videos, created by various artists, there are two basic copyrights that are triggered-

  1. Moral Rights (owned by the songwriter/composer)
  2. Economic Rights (in most cases owned by the record label)

Section 38 of the Copyright Act pertaining to the performer’s rights, gives exclusive right and authority to the performer in any act in context to the performance to receive royalty, hence not prejudice the right of the authors. Therefore, this section enables the performers’ payment of royalties. In the case of Myspace Inc. vs Super Cassettes Industries Ltd[2] the division bench at Delhi High Court had held in view of equity, that it was the responsibility of  Super Cassettes to provide the details of the specific work that was being infringed, along with their URL/Links on the MySpace Site as per the infringement, so that the contents may be removed/blocked by MySpace within the statutory limit of 36 hours, as provided under the Information Technology (intermediaries guidelines) Rules, 2011. The was done since the Court had decided that Myspace should be given a safe harbor as an intermediary, and therefore, be exempted from liability for any third party information, data or communication link made available or hosted by it.

On 3rd April 2019, the Madras High Court banned the download of TikTok by an interim order in lieu of a PIL filed against the App pursuant to safety concerns for women and children due to potential misuse of the App for explicit distribution of the content. However, the ban got lifted on 24th April 2019 based on the grievance mechanism of the law and the self-regulatory mechanism of TikTok, whereby, the App claimed that they were merely a platform for sharing of content, and are therefore, covered under the description of an “intermediary” under the Information Technology Act, 2000.

This judgement by the Court could prove to be problematic, since the precedential effect of the same would be reflected on the future judgements pertaining to TikTok and their user policies. While TikTok Makers have never really advertised their business practices, most tech websites claim that the App pays some amount of royalties to the right holders, therefore, most of the music on TikTok is licensed that way, and that is how TikTok has been avoiding thousands of lawsuits for the misuse of their intellectual property. In an article published by TechJunkie the author says that the most likely model is that if a licensed music is played, the right holders get a cut and if the licensed music is sold, the right holder gets a percentage[3].  

However it is seen that based on the veil of an intermediary platform, for all this while, TikTok has been attempting to get away with a model of forced licensing whereby they force artists to either enter into a license agreement with them on their terms or take up the matter with the respective legal authorities. A Musical.ly official has been stated saying, “It’s either you can sign this contract and get paid something, or don’t sign the contract and your music’s still going to be here but you’re not going to get paid anything. You’re going to have to deal with DMCA takedowns. Goodbye” as claimed by Pitchfork[4].

Considering the mechanism of how TikTok works, the App clearly allows the creators/users to modify, edit and share their content for monetary gain. The Information Technology Act, under Section 2 (w) has defied intermediaries as someone who, on behalf of another person, receives, stores or transmits the records or provides any service with respect to that record includes telecom services providers, web-hosting service provides, search engines, online payment sites, online auction sites, online market places and cyber cafes[5]. When comparing the definition of an intermediary to the User Interface of TikTok, the difference becomes blatant. An intermediary is only supposed to be a platform wherein users exhibit their content; they act as facilitators and have no role in providing any other resource. In the case of Christian Louboutin Sas v Nakul Bajaj [6]did not only form a link between the customer and the seller, but also provided other services, therefore, to constitute as a intermediary, you need to be a passive platform, like E-bay, MySpace, Facebook, etc. When the platform starts providing a value added service and plays an active role in providing such services, it no longer acts as simply an intermediary, and therefore, is not liable to be covered by the safety harbour of Section 2 (w) of the Information and Technology Act, 2000. TikTok on the other hand, allows the users to edit, modify and change the music being used.

While, it seems that TikTok is slowly growing more aware of the legal fatalities it could fall under prey to if they continue to function on the basis of their current model. In January 2020, to secure economic rights over the music they have been using, TikTok has signed their first biggest deal with Merlin, a global agency that represents thousands of independent music labels and many more artists. It has been further seen that starting April, 2020, TikTok has struck short term deals with Universal Music Group, Sony Group and Warner Group, as well as Kobalt and BGM’s recording and publishing entities.

In India ByteDance, has stuck a with Sony and WMG for a new App- Resso, launched last month, which is a social music streaming site and unlike Spotify and Apple Music, is more social and interactive for the user. This has been done in an attempt to generate more revenue by the company, since the royalties being paid by the App Company to the record labels and artists is quite insignificant, and if continued, could lead to the downfall of the App[7]. Shemaroo has also tied-up with TikTok to give the users access to a wide variety of famous Bollywood music and Dialogue from Shemaroo’s extensive portfolio[8]. According to Techcrunch, TikTok has also partners with Vedantu, Topper, Made easy and GradeUp in India to provide educational content on TikTok[9], most like to nullify the effect of the PIL against it filed in the Madras High Court. It is said that now TikTok has over 8000 licensing deals, primarily inherited from its predecessor, Musical.ly[10].

However, to have a wider ambit of protection and to avoid the infringement of Intellectual Property Rights, TikTok not only needs to secure the economic rights from the record label companies, but also the moral rights of the songwriters and composers by striking deals with Indian Performing Rights Society, Phonographic Performers Limited and Novex Communications, or they will be dragged into further legal complications as has been the case in the UK, where the ICE and TikTok have progress into an arbitration to resolve the terms for the licensing of the TikTok Platform in context to the artistic workd represented by the ICE. In July 2019, TikTok had approached UK’s Copyright Tribunal to deal with a licensing dispute between TikTok and ICE[11]. Therefore, unless TikTok makes some quick moves, time is only a ticking clock.

Author: Suvangana Agarwal, Litigation Associate, at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at suvangana@khuranaandkhurana.com.


[1] Raphael, Shannon. “Here’s How Much You Can Make From Being Famous on TikTok.” Distractify. Distractify, August 7, 2019. https://www.distractify.com/p/can-you-make-money-on-tik-tok.

[2] Myspace Inc. vs Super Cassettes Industries Ltd 236 (2017) DLT 478

[3] “How Does Tik Tok Use Music Legally?” Tech Junkie. Accessed April 6, 2020. https://www.techjunkie.com/how-does-tik-tok-use-music-legally/.

[4] Cooper, Duncan. “How TikTok Gets Rich While Paying Artists Pennies.” Pitchfork. Pitchfork, February 12, 2019. https://pitchfork.com/features/article/the-great-music-meme-scam-how-tiktok-gets-rich-while-paying-artists-pennies/.

[5] Section 2 (w) Information Technology Act, 2000

[6] Christian Louboutin Sas v Nakul Bajaj CS (COMM) 344/2018

[7] Staff. “TikTok Bags First Major Licensing Deal with Merlin.” BGR India. BGR India, January 24, 2020. https://www.bgr.in/news/tiktok-signs-major-licensing-deal-with-merlin-can-soon-use-music-from-independent-labels-in-videos-872016/.

[8] www.ETBrandEquity.com. “Shemaroo Entertainment Forges Bollywood Licensing and Merchandising Partnership with TikTok, Vigo Video – ET BrandEquity.” ETBrandEquity.com, August 17, 2018. https://brandequity.economictimes.indiatimes.com/news/media/shemaroo-entertainment-forges-bollywood-licensing-and-merchandising-partnership-with-tiktok-vigo-video/65434952.

[9] Singh, Manish. “TikTok Makes Education Push in India.” TechCrunch. TechCrunch, October 17, 2019. https://techcrunch.com/2019/10/17/tiktok-education-edutok-india/.

[10] Hale, James. “TikTok Strikes Short-Term Licensing Deals With Sony, Warner, Universal (Report).” Tubefilter, April 1, 2020. https://www.tubefilter.com/2020/04/01/tiktok-music-licensing-sony-warner-universal/.

[11] “ICE and TikTok Agree to Enter into Arbitration Following Rights Dispute.” PRS for Music: royalties, music copyright and licensing. Accessed April 7, 2020. https://www.prsformusic.com/m-magazine/business-and-money/ice-and-tiktok-agree-to-enter-into-arbitration-following-rights-dispute/.

Leave a Reply



  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010