The Memo: Activision Sues Music Critic over TikTok Sound

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Activision Sues Music Critic over TikTok Sound

Taiwo Oshodi – 7 August 2023

Issues of IP, fair use and image rights can be a tricky topic to fiddle with given the 21st century landscape of memes, the rise of apps like TikTok and the resultant change in viewing and content creation habits. Activision’s lawsuit against famous music critic, Anthony Fantano, is demonstrative of conflict that can arise between large corporate entities and smaller public figures in grey areas of fair use. According to the suit, the music critic’s team threatened to sue the company for using a clip of audio from his viral TikTok in an advertisement.

The advertisement in question was for ‘Crash Bandicoot’ trainers, and was also created and promoted on TikTok. After seeing the clip, Fantano’s team contacted Activision to take the video down and pay a settlement as damages for use of the audio. When Activision took the video down but did not pay the settlement, Fantano’s team threatened a suit. In response, Activision sued Fantano.

Activision says that TikTok’s terms of service allowed them to use the audio in their video, further arguing that Fantano uploaded the video “knowing that a key feature of the TikTok platform is that it permits, enables and encourages users to incorporate content from other TikTok videos in their own videos.” They also highlight that Fantano’s viral video itself uses third-party content from the platform. Fantano argues however (from Activision’s account) that the use of the audio in Activision’s advertisement was in violation of the 1946 Lanham Act, because, in using his likeness, it made it look like the critic endorsed the product. The Lanham Act, otherwise known as the Trademark Act of 1946, provides courses of action for trademark infringement including action for false endorsement which can manifest as an injunction and damages for lost profits.

The complaint filed by Activision seeks a judgement that they did not violate the Lanham Act or rights of publicity, with the company countering that any of Fantano’s rights in this regard were waived upon the sound’s addition to TikTok’s Commercial Sounds library. Indeed, TikTok’s commercial terms of service say use of TikTok is acknowledgement that other users have the right to extract ‘all or any portion of your content to produce their own content.’ However, reading further the terms of service do not clearly state that use of other content is granted for formal advertisement, and in fact state that, ‘nothing herein will limit any other rights you may have, including any actions you may take to defend your intellectual property rights’ – a defense which has sparked the conflict.

Debate over content use and reuse on TikTok has always circulated. Fantano has himself argued that those who create viral sounds should benefit from them – poignant in this instance given its use in an advertisement. Across most platforms it would be expected that creators of content would be reimbursed for that content and their image to be commercialized. The outcome from the case will help to provide clarity for content creators and advertisers on TikTok, and will have implications for how the two approach the issue in the future.