This battle royale just keeps on giving...
After pulling its recording artists' music from TikTok on 31st January 2024 as described in our previous blog on the subject, Universal's publishing arm's license with TikTok was allowed to expire on 29th February 2024, forcing the social media giant to remove yet more music from its platform.
Music ownership consists of two parts, the 'master rights' in the recordings, and 'publishing rights' owned by the writers of each song. Universal's record label controls about 3 million master rights to recordings, and their publishing arm controls copyrights in about 4 million songs.
Publishing is more complicated than master rights, because of the increasing tendency for songwriters to collaborate on songs, and the increasing use of samples. The crown for the highest number of copyright shares we have seen in a song is held by Travis Scott's 'Sicko Mode' with 30 - yes, THIRTY - publishing shares, due to the collaborative writing process and the use of samples from three other songs which also had numerous writers.
Some of the publishing shares are tiny, less that 1%, but the way copyright law works means that even in the case of a songwriter only owning a small fraction of a song's total publishing rights, their permission (license) is needed to use that song. If they say 'no', that song can't be used. So you need to get permission, a license, from literally everyone.
How much music is affected?
There is a difference of opinion about how much music this actually affects on TikTok - TikTok themselves say its about 30% of the music on their platform (which incidentally was originally named 'musical.ly', and that address still points to TikTok).
Music industry experts, however, have estimated that the real figure could be up to 80%.
The reason for this lies in the fractional ownership of publishing, and the fact that Universal's publishing rights, and those of any other publisher, aren't all related to the tracks that their companion record labels put out (in this case Universal's). In fact Universal's writers own shares of the publishing in songs that are put out by many other record labels, and the reverse is true - publishing rights in Universal's record labels' tracks are owned by many other publishers, not just Universal's writers.
The interesting point here is that TikTok doesn't know for sure, and neither do the music industry experts who have given their opinion - the truth is hidden in difficult-to-access music industry metadata files of the type that we at ClicknClear receive and process in their tens of millions before being able to be sure what tracks we can make live on our platform.
This should put TikTok on high alert - there is a risk that they will unknowingly continue to use music that has a copyright share owned by a songwriter signed to Universal. "I didn't know" is not a valid defence in copyright infringement cases, so they will still be liable for the infringement and Universal's lawyers will doubtless be waiting for any slip-up.
38% of music in use on TikTok has been modified.
Another aspect to the case has also come to light - a substantial part of the music used on TikTok has been shown to be modified. It increased from just under 25% in 2022 to just over 38% in 2023.
Choreographed performance sports require explicit rights to be able to edit and adapt music and choreograph to the music for their routines. For use cases like TikTok, adaptions need to be licensed too (which is why they had a licensing deal with Universal in the first place).
When modified music is used without proper attribution (which appears to be the case on TikTok with less than 1% of the music on there being labelled as adapted when in fact the number is 38%), not only is there a potential large copyright infringement liability, but copyright owners can miss out on revenue that is mistakenly attributed to someone else. This gives Universal other compelling reasons to pay very close attention to what is going on with their music on TikTok - and all other music industry record labels and publishers too.
Latest Conclusions
So, as we eagerly await the next developments in this saga, what new lessons can we learn from TikTok vs Universal Round 2?
Music publishing rights are even more complicated than master rights - you need to be 100% sure that you have 100% of the publishing rights to music before using it, whether that's an original music industry track or a cover version.
This case is increasingly looking like it will give the music industry reasons to further investigate how their music is being used, not just on social media, and crack down on copyright infringements.
Be sure you are using music from a partner who guarantees that they have all the rights you need to the music, from the master AND 100% of the publishing owners of each track - like ClicknClear.