What’s going on with original audio on TikTok, YouTube Shorts, and Reels?

If you use any short-form content platform, such as TikTok, Instagram / Facebook Reels, or YouTube Shorts, then you’ve probably seen the “Original Audio” indicator or some other feature that flags the audio source for the content.

But, have you ever stopped to think about the legal issues that surround audio in short-form content? Let’s dive in!

🎵 Most creators and brands have seen news coverage on the copyright pitfalls of using music from a platform’s audio library or music catalog for commercial purposes (hint: don’t do it). Luckily, platforms have been working to offer a solution for creators and brands. TikTok recently launched its “Sounds for Business” catalog (link in comments) that offers 10 tracks that have been pre-cleared for commercial use. YouTube’s new Creator Music offering actually covers what I’d deem a “lite” commercial use. As they explain on their help site, a creator can have paid promotional content in a video that is not primarily about a product/brand endorsement.

💡 Pro Tip: Keep in mind that music licensed from one platform’s library doesn’t mean it can be transferred to another platform without potentially landing a copyright issue.

❓ Another point to consider is whether a Fair Use defense comes into play. Given the “remix culture” that plays a large role in short-form content, creators that dissect or provide commentary on a then-current trend could potentially argue that their use falls within the scope of a valid fair use argument, even if done from a commercial or creator business account. Every situation is unique, so definitely get legal counsel specific to your activity.

🗣️ There could be commercial speech and name, image, and likeness (NIL) issues if a creator or brand is re-using another creator’s original audio for commercial purposes. A fair use likely wouldn’t apply here, but there’s possibly some form of a similar exception under various state privacy and publicity laws. It’s definitely a nuanced issue that would require legal review.

It’s worth exploring whether a platform’s terms of use (and potentially privacy policy) provide coverage for other users re-using and remixing content, including original audio that contains content protectable under NIL rights. But, relying on a third-party contract might not be the best path, so instead, get a waiver or permission from the person whose NIL is being used.

🧐 Look closely for imposters! Original audio is user-generated content (UGC) so platforms have protections under the DMCA (for copyright) and Section 230 (for content generally) when they are hosting such content. However, users that remix and reuse don’t. If it sounds like Ciara’s ‘Level Up’, it likely is and shouldn’t be reused.

What do you think? Are there other pitfalls, legal or otherwise, you have seen?

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