My friends provide me with a great source of inspiration for many things. I realised this while having a very random conversation on IG with a friend of mine. She sent me a video asking if I thought the accidental creative should be getting paid for the use of his audio. The video my friend sent is one of my favourites because it is my mood all day every day for the first week after payday. My money is for flexing and enjoyment only. Anyway, I digress, we had a mini argument about it and I decided to share it with you guys.
Now let’s see, should accidental creatives get paid?
Knowing how widely memes spread, it makes it almost impossible to track down every single person that has made use of this video’s audio to create their own content. So how then can we ensure that creatives get their coins?
My friend wanted to know if it constitutes a breach of any intellectual property rights to use it without crediting the owner or seeking their permission. Under the law, the use of copyright protects your right of ownership, economic rights and every other right attached to it. The lines, however, become blurred on social media.
That video alongside every other popular skit -that you know- typically makes rounds on social media with many people using the audio and infusing their video or vice versa. It is even a lot more common on TikTok. It is normal to see hundreds of videos posted by different accounts using the same plot, dance, music or audio. This raises interesting questions on copyright such as whether using the audio tracks from other users can be considered copyright infringement.
Interestingly, if a big fast-moving consumer goods (FMCG) company uses that same voiceover, he will be well within his rights to ask for payment because it’s a lot easier to track them down and they also have the coins. Fighting capitalism and exploitation of poor people’s labour. I’m very much with it.
Here’s another question we should be asking considering how much of this happens on TikTok- Do creators have copyright protection over original dances and choreography?
TikTok’s intellectual property policy defines copyright as a legal right that protects original works of authorship. It also states that it does “not allow any content that infringes copyright.”
This statement is vague and does not give insight on specific rights involving the use of original audio like in the scenario above, music or dance. It’s also interesting that as hung up as Tiktok seems on intellectual property policies, an estimated 50% of all music used in music videos on TikTok are unlicensed.
Simply put, even dance may warrant copyright protection. The U.S. Copyright Office in 2019 however denied registration of the famed “Carlton” dance originally performed by Alfonso Ribero on the sitcom The Fresh Prince of Bel-Air. The U.S. Copyright Office found the choreography in that instance to be a “simple dance routine” and therefore ineligible for registration. Is this not….village people?
This outcome may be unfavourable to simple routine choreographers on TikTok but as God will have it, courts are not bound by the decisions from the Copyright Office, although the decision will definitely be taken under advisement. In all fairness to the Copyright Office, their argument is valid and definitely holds.
Let’s look at the feasibility of “TikTokers” copyrighting their works - In all honesty, it is not feasible for all TikTokers and accidental creatives to copyright all their works especially for their economic rights. The world has become a global village and it is also unlikely that many of them will go to such lengths to protect their works. Also, part of the joy of the world being a global village is also being able to always scroll up on TikTok on the “for you” section and see tens or hundreds, sometimes thousands of videos mimicking the same dance steps while adding their own twist.
LET’S TALK ABOUT ARENA RIGHTS IN BRAZIL
In other news, Brazil is debating a law on the rights to broadcast sporting events. Sounds interesting. Currently, sporting organisations have the right to negotiate and authorize broadcasts of sporting events in which their athletes participate. This right is known as “arena rights”. Arena rights exist such that the athlete is entitled to some form of royalties for having their image broadcast during a sports event. It’s also a legally protected right that’s completely separate from their professional contract with contracts entered with their prospective clubs.
Arena rights in Brazilian legislation originated in 1973 and it gave sporting entities the exclusive right to authorise electronic broadcasting for paid-entry matches. This law also determined that 20% of the fee that broadcasters paid clubs for authorisation would be distributed equally among the participating athletes.
Amendments have been made to the law over time and today, the Law known as Pele’s Law which is the principal legislation on sports in Brazil provides that sports associations have the right to negotiate and authorise or prohibit any form of broadcasting of the sporting events in which their athletes participate.
In the year of our Lord 2020, another amendment was proposed to review the wording of the law to provide that only home clubs need to authorise broadcasting and negotiate with networks. It is no news that streaming technologies are competing with regular TV stations and this development saw Brazil’s national basketball league end its 10-year partnership with Globo and Sports TV and is choosing to broadcast via Fox, ESPN, Facebook and Twitter.
Enacting legislation can be tricky and because congress did not formally sign the provisional measure into law, it became invalid in October 2020. The bill is, however, set to be debated. If it is changed and passed into law, broadcast networks have to tighten their belts and start important negotiations for broadcasting rights for competitions starting from 2025. The law is not retroactive so it will only affect contracts that will be entered into after the law is passed. Existing contracts that are contrary to the law will run their full course.
The changes in Pelé's Law is likely to allow clubs – including smaller ones – to have greater bargaining power in broadcasting negotiations for matches. “There is also the possibility of a shift in trends that may serve as a disincentive towards pay-per-view subscriptions, which are usually purchased by loyal fans who wish to watch matches that are not always broadcast on free-to-air or pay-tv networks
The real question is - Will this affect how football is watched? We should be on the lookout for the contractual transitions that are likely to be brought on by this change, considering the scale of the contracts typically signed between large television networks and large football clubs. This development will definitely affect how football is watched. Let’s see if it will be a positive or negative development.
Fingers crossed on what happens. I’ll be more than happy to bring you more updates when I have them. 🤓🤓🤓
As always, I’m bringing you important tidbits and what you may call free legal advice.
DID YOU KNOW?
Start-up founders, your contract staff and employees have the copyright of the software they build for your Company unless they sign an agreement transferring ownership to the Company?
Copyright protects the expression of thoughts and works, not ideas. Your idea is not “copyrightable”
Intellectual property laws can protect shapes (yes), surface decoration and artistic aspects of products by way of industrial designs.
If you enjoyed reading this or learned something new, let me know what you think in the comments OR WRITE ME AT lily@techgavel.com.
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P.S: On a lighter note and in line with our last discussion on “louding” your work, I designed this logo. Book me for your designs and I shall be booked? Tell me what you think in the comments.
I also know this is coming later than expected but I’ve had a rough week. I’m typing with one hand fully functional (nothing serious, it will ease up) and a few bruises.
Next week will be better. Don’t forget. I’ll be in the comments.
This is a great article. Well done!