Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

What did your look like this year? As music streaming services grow in popularity, more people have included them as part of their daily lives. On November 29th, The Competition and Markets Authority (CMA) released its of its market study into music and music streaming. According to the report, streaming services are the primary method of music distribution for labels and artists, with 39 million active users and over 138 billion streams in the UK in 2021. Moreover, competition between music streaming services and the digitization of the market improved consumer outcomes greatly, though creators still had concerns about their earnings from streaming.

Falling subscription fees, benefits for emerging artists

Music streaming services have evolved to significantly benefit consumers in today's market. These services offer consumers access to an enormous catalogue of music, better audio quality, and new features, without the price tag. In fact, the report reveals that the price of music streaming plans dropped more than 20% between 2009 and 2021 because they did not keep up with inflation.

The music streaming market is also showing some positive results for creators, especially new artists. First, virtually anyone can share their music. Although the market is highly competitive, it has never been easier to create and record music and share it on streaming services. Secondly, deal options for creators are improving. Although creators do not necessarily need a label to share their music on streaming services, many of them are finding that they have more options in what type of deal they would prefer (for example, DIY distribution, A&L services, traditional record deals). Moreover, artists find that having an existing prominent following online helps them while negotiating a record deal. Major contracts with new artists for multi-track deals revealed more favourable terms for creators — an increase in average gross royalty rates, shorter minimum commitment periods and a reduction in the proportion of recordings owned by labels.

Average UK artist yearly streaming earnings from majors and average UK royalty rates. Source: CMA analysis of data from the majors.

Challenges call for broader policy debate, not competition intervention

Digitization has also presented some challenges. Market digitization has primarily limited competition to already popular artists — although streaming services offer a wide selection of music, consumer tastes tend to favour a small number of successful artists. Moreover, streaming allows both new and old music to reach new audiences, increasing competition as new music competes with older music for a share of streaming revenue.

Ultimately, the report concludes that these outcomes are not primarily caused by market competition and therefore, a competition intervention probably would not increase revenues for artists. Rather, the report calls for a broader policy debate, encouraging the government to consider further legislative and policy reforms for creator compensation in collaboration with DCMS Select Committee recommendations.

Labels are urged to provide more transparency to their artists about how streaming service earnings are calculated and how existing deals with streaming services will impact their current and future earnings. In addition, government and policymakers should examine options available to incentivize songwriting, such as determining a fair split between publishing and recording shares and exploring the licensing rates for music streaming. Future conversations revolving around these issues are critical, as the sustainability of the music streaming market depends on consumers and creators alike.

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Alice Xie is an IPilogue Writer and a 1L JD Candidate at Western University’s Faculty of Law.

Do you remember contemplating whether you liked a trending pop song enough to spend $4.99? With the rise of online streaming services like Spotify and YouTube over the last two decades, listening to music has arguably changed for the better. However, with the convenience of streaming music through these digital platforms, the music industry has also had to deal with a wide range of copyright issues, including online copyright infringement. A look at streaming giant Spotify’s recent significant copyright battles provides some insight into the issue of on online streaming platforms.

Spotify’s Recent Significant Battles

Spotify has encountered its fair share of copyright infringement lawsuits filed by music artists, record labels, and publishers. In 2015, guitarist David Bowery filed a lawsuit against Spotify USA, a Spotify subsidiary, for streaming songs without first , which are the standard payment for reproducing or distributing a song. Spotify settled the lawsuit with . In 2017, music publishing company Wixen also filed a against Spotify USA, seeking $1.6 billion. Wixen claimed that Spotify from its represented artists, which resulted in the artists and publishers not receiving royalties when customers streamed their work. Spotify and Wixen mutually agreed to in 2018. In 2020, two entertainment companies filed against Spotify and other streaming services for not receiving royalties for their streams. The issue of inadequate artist compensation is not unique to Spotify, but applies to all streaming services.

New Copyright Law: A Solution for Spotify

The relevant US copyright law is , which states that a person or entity seeking to distribute a musical work must first obtain a compulsory license. One can obtain a compulsory license by filing a notice of intention (“NOI”).�� In 2018, the US Congress passed a law called the (“MMA”), which seeks to alter the licensing system for the better and take charge of the compensation process. Title 1 of the MMA is especially relevant, as it establishes a for digital music providers. The blanket licensing system covers all musical works available for compulsory licensing, which means that streaming services will no longer need to file an NOI for each song or work. The MMA also established the Mechanical Licensing Collective (“MLC”), which administers the blanket licenses and more notably, maintains a containing information on the musical works and their copyright owners, if known. The law was set to .

Inadequate artist compensation may be partly explained by the difficulty of accurately identifying the rightsholders of each work, given the volume of music works. Digital service providers cannot locate the recipients of royalties. Lesser-known music artists are even more vulnerable to copyright infringements in this way. The MMA ideally solves this difficulty through the public database, which centralizes all information relating to musical works into one place. This provides parties like streaming services seeking compulsory licenses with a recognized source of rightsholders from which to draw. Additionally, the database validates artists’ possession over their works that will not be easily taken. If correctly implemented, the MMA can advance the collective goal of creating a digital music ecosystem where streaming services grow their platforms by legally acquiring distribution rights and artists, publishers, and record labels are rightfully compensated for their work. We may look to future copyright infringement cases to inform the �ѲѴ�’s effectiveness.

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Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Abigail Barlow and Emily Bear combined their talent with their love for the Netflix Original, Bridgerton, to create the 15-song “Unofficial Bridgerton Musical” album. Barlow and Bear went on to become viral sensations on social media and (2022 Best Musical Theatre Album) for their production.

On July 29^th 2022, Netflix the TikTok stars Barlow and Bear in the U.S. District Court in D.C. alleging in violation of 17 and . Netflix Barlow and Bear have benefited from their album’s false association with the Bridgerton brand. Netflix also the position that Barlow and Bear “” the elements of expression, dialogue, characters, and key plot points from Bridgerton.

Allegedly, in March 2021, when Barlow and Bear’s team asked Netflix for permission to record their album, Netflix the activity but said they wouldn’t “”. Per their , Netflix told Barlow and Bear that they would not authorize any live performances of the songs. Despite Netflix’s statements, in July 2022, Barlow and Bear held a sold-out show in New 91��ɫ with ticket prices ranging from $29-$149+. When hearing of the future live shows Barlow and Bear had planned, Netflix that would permit their shows, continued distribution of the album, and any further performances of the Bridgerton-inspired songs; but Barlow and Bear refused the licensing option.

Perhaps more important for Netflix is the promotion and success of their event “Queen’s Ball,” a Bridgerton held across multiple cities. Barlow and Bear’s live show would likely compete with the profits of the “Queen’s Ball.”

Barlow and Bear hold the position that their work is not liable for IP infringement because it is inherently “fan fiction.” Netflix has that “Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point.” Jane Quinn, author of the books of which Bridgerton is based has a difference between flattery through composing songs on TikTok and performing an album for commercial gain.

Barlow and Bear may use the “fan fiction” defence to claim their work is not an infringement based on fair use by proving the elements of fair use: the art is to the original show. Additionally, fan fiction must be for the creator. considered for establishing fair use are the purpose of the work created, nature of the work copied, measure of the material copied, and the impact on the market.

Ironically enough, if this case was filed in Bridgerton home territory, the UK, Barlow and Bear may attempt to use the defence of parody and pastiche. Netflix would likely win their case had it went to court based on ��a very similar case earlier this . ��In the of v. Only Fools The Dining Experience, the court ruled in favour of the creators of the original show because the nature of the “dining experience” was not so removed from the original show “” with it. Similar to Netflix, Shazam had their own musical for which sales could have been diverted by their audience choosing the dining experience instead. The court also found that that the defences of parody and/or pastiche did not apply.

TikTok has proven since the pandemic its unique power to make music, books, and tv/film over-night sensations. The Netflix v. Barlow and Bear case illustrates that companies may have to navigate between having its work become a positive viral sensation ��while still protecting their business interests and the content that its ��team has worked so hard to create.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

Beyoncé's new album released on July 29, 2022, Renaissance, was the subject of a lot of backlash this month.��Her song “Heated” was “ableist” and “offensive” from listeners for using the word “spazz,” and many more were heated about “Energy,” interpolated Kelis’ 2003 R&B favourite, “Milkshake.”

On August 8, 2022, Kelis was how she felt about Beyoncé’s use of her song, stating that she was neither notified nor asked for permission before the sample was used in “Energy.”��Beyoncé fans Kelis for vocalizing this issue, saying that the singer should have just “been happy to be on the album,” but Kelis continued to voice the disrespect she felt by this act. In a viral Instagram story, she exclaimed, “from one artist to another, you should have the decency … to call reach out … a manager, an agent, anybody … even if you’re going to do it anyway.”

From a legal standpoint, lawyers have been clear that Beyoncé’s team their legal obligations. Artists only require permission from original composers and the record labels if they wish to borrow work, and unfortunately for Kelis, she didn’t fall within this category due to a contract she signed when she was nearly 20 years younger and did not fully understand. Kelis also that, back then, she was falsely promised that she would receive an equal split for the song.

Shortly after being publicly called out, Beyoncé the problematic sample from the song on versions available on several streaming platforms. She also removed the credits for Pharrell Williams and Chad Hugo, the creator and producer of “Milkshake” - a move to “manage ‘potential fallout’ from the public.” Kelis has no legal ground to stand on but her quarrel with Beyoncé illuminates a prominent and recurring issue in the music industry. Young artists continue to be pressured into signing contracts that they don’t fully understand, signing off rights that lead to catastrophic results later in their careers. We saw this with when she re-recorded some of her most famous albums in an attempt to own her own work. She stated, "This is what happens when you sign a deal at 15 to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says, ‘Music has value,’ he means its value is beholden to men who had no part in creating it."

Moreover, contract with label and management company Love Renaissance was in the limelight late last year for its debilitating demands. The draft document harshly demanded that the singer “give up a chunk of all her non-musical earnings, even in areas like acting” and offered low advance payment and royalty rates in comparison to the standards then.

Often blinded by their ambition and pressured by the power imbalances with their labels, younger musicians need to ensure that they are securing their full rights at the time of music creation. This would require the artists to understand the individual actors that the musical composition would be split amongst, preferably a “split sheet,” where everybody’s contributions would be documented to avoid any confusion later down the road. Just a few minutes of extra due diligence in the recording room can spare an artist from losses decades into their career.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

According to , tensions are rising in the Livingston family as to who earns the royalties from the Academy Award-winning composer, Jay Livingston’s hit songs. ��These songs include such as Que Sera, Sera and theme songs for various television programs. Jay Livingston’s granddaughter, Tammy Livingston, launched a complaint against her mother Travilyn Livingston on July 17, 2022 and her publishing company, Jay Livingston Music Inc, for exercising copyright termination rights in several of her grandfather’s songs. , and how they may diverge what the artist originally intended. Copyright law may diverge from what the artist originally intended.

The Livingston Trust

Jay Livingston is known for co-writing several famous compositions, such as Que Sera, Sera, Bonanza and Mona Lisa. The composer died in 2001 and left a detailed estate plan to ensure that his family members get a share of royalties from his songs. The complaint states that Jay Livingston established trusts that took over 15 years to design and required the assistance of several estate planning attorneys.��The complex trust relationships were outlined in the .

All these elaborate plans, however, were thrown into disarray when Jay Livingston assigned his song rights to Travilyn Livingston's music publishing company, a year before creating the estate plans. According to of the United States Copyright Law (Title 17), authors and their statutory heirs can terminate copyright assignments and licenses made after 1978 as early as 35 years after they were first created. Travilyn Livingston exercised exactly that right and terminated the assignments to Jay Livingston Music 35 years later. As a result, any further royalty income will be out of Tammy Livingston's reach if the terminations are found to be valid.��

But what about what Jay Livingston wanted? Transfers by will are not subject to copyright termination, but since Jay assigned his copyrights to Tammy’s company, the termination rights are still exercisable.

The Deal with Copyright Termination

The US Copyright Law also defines the entitled to serve a termination notice. In the Livingston situation, since the artist’s spouse is deceased, the entire termination interest will be held by the artist’s children. Consequently, Travilyn Livingston, Jay Livingston's only living child, is the entitled heir and holds all of Jay's termination rights as well as all the recaptured copyrights, despite the composer’s clear intent for Tammy to receive her share.

The clause is meant to give authors the opportunity to regain rights in works they may have signed away when they had little bargaining power”as well as give the artist’s heirs “a second chance to exploit previously-assigned copyrights”. The Canadian copyright regime (the Copyright Act) similarly has section 14, , which excludes works made in the course of employment. However, the Livingston situation shows how the copyright termination statutes can be deliberately wielded to ruin detailed estate plans left by the artist.

To avoid similar situations, estate planners should plan ahead and include any copyright interests in a will or pour-over will to ensure that their strategic plans will be carried out after their passing. But with no will to be found, Tammy Livingston will just have to take her grandfather’s advice, whatever will be, will be.

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Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

In a recent installment in the series of intellectual property disputes in the music industry, electronic artist Four Tet, also known as Kieran Hebden, has against his independent British record label, Domino Record Label, over how much he is paid every time one of his songs is downloaded or streamed. Four Tet had ; a time where CDs were still popular and long before the invention and popularization of music streaming. In this contract, it was stipulated that for licences, he would be paid a royalty rate of but for a sale, such as the sale of a CD, he would be paid a royalty

Sales vs Licences

When Four Tet’s contract was signed in 2001, these standard licensing terms were for the music industry. For music sales, such as selling music via CDs, vinyl, and cassettes, overhead costs for record labels were much higher due to manufacturing and distribution expenses. Thus, in order to cover the overhead costs, record labels would pay their artists a lower royalty rate compared to the royalty rate for licences. For licences, it was understood that the third party licensing the music, such as for a movie, television show, or advertisement, would take on the extra costs, allowing for an artist to receive a higher royalty rate from the record label.

However, with advancements in technology for music consumption, the landscape of the music industry changed. Record labels no longer had high overhead expenses due to no longer having to manufacture and distribute CDs, vinyl or cassettes. Yet record labels continue to ��argue that music downloads and streams should be considered as sales as this is a new technology format. Artists have typically disagreed with this and insist that this type of royalty model is unfair. For example, in 2011, against Eminem’s record company, Universal Music Group for unpaid royalties, due to the producers arguing that streamed and downloaded music should be considered akin to licencing of music and not sales.

The Case at Hand

In 2020, Four Tet against Domino for unpaid royalties. Similar to the Eminem case, Four Tet argued that he should be paid a royalty rate of 50% for streams and downloads of his music, not the 18% that the record label had been paying him. Four Tet reasoned that streams and downloads of music are like licences; not sales. In response to the lawsuit, Domino removed three of Four Tet’s four albums produced with the record label, without Four Tet’s consent, from all streaming services and online stores in November, 2021, which ” Four Tet. Four Tet responded by adding a claim for breach of contract, resulting in Domino threatening to take the case to the High Court.

The case, which took place in the Intellectual Property and Enterprise Court, ultimately and Domino agreed to pay the requested royalty rate of 50% on streams and downloads as they are now considered to be licences. Domino also paid Four Tet £56,921.08 to account for the difference in income owed as a result of the difference between the royalty rates of 18% and 50% and simple interest calculated at a rate of 5% per year during the accounting period commencing July 1, 2017.

Future Impacts

The settlement may significantly impact the way the music industry values streaming and downloading and thus may impact royalty rates. This is particularly important as the music industry seems to be undergoing a reform regarding royalty payments. , a committee of UK MPs published a report advocating for a 50/50 royalty split between the record label and the artist. Similarly, the US Copyright Royalty Board has to increase streaming royalty rates to 15.1% for songwriters/publishers. ��These decisions, including Four Tet’s successful settlement, indicate that the music industry is changing and artists will start gaining fairer deals when it comes to royalties from streaming and downloading.

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Mariah Carey’s 1994 tune “All I Want For Christmas Is You” is one of the most iconic songs of the holiday season. It is the to be certified diamond, earning an estimated . With over 1.15 billion streams on Spotify alone, it would be hard to find someone unable to complete the lyrics after hearing the opening line, “I don't want a lot for Christmas…”

After 28 years on air, it might be a surprise to see a new copyright infringement lawsuit filed against the song in Louisiana on June 3. Novelty musician Andy Stone, also known as Vince Vance and the Valiants, against Carey, her co-writer, and Sony Music for copyright infringement, alleging that Carey knowingly infringed the rights to Vance’s . According to the lawsuit, Vance’s lawyers contacted Carey in April 2021 but were unable to come to any agreement regarding the rights and distribution of “All I Want For Christmas Is You.” Vance seeks $20 million dollars in damages for Carey’s failure to obtain permission to use Vance’s song to create a derivative work.

The US statute of limitations is from the last incidence of infringement, but due to the nature of the song’s annual return, the statute has not run. While the untimeliness is certainly odd, the lawsuit itself is even odder. The complaint does not explicitly allege that the two songs are substantially similar. Instead, states that Carey’s work “was designed to exploit [Vance’s] popularity and unique style, causing confusion as to the association” between the two artists. In doing so, Carey effectively sought to “capitalize on the goodwill and unique talent of [Vance] in an effort to obtain commercial advantage.” This argument is questionable considering that in the 90s, Carey sold over ﷟ 100 million albums and released 14 No. 1 singles compared to Vance’s song, which on �����������Dz�����’s Hot Country Singles and Tracks chart in 1994.

In order to prove that Carey’s song is an unlicensed derivative work, Vance will need to show that Carey’s work is a derivative work in the first place. Beyond the obvious fact that the two songs share a name, there appears to be little else supporting the vague allegations made in the lawsuit. Words and short phrases such as names, titles, and slogans are . In fact, Vance’s song with the same title listed on the US Copyright Office’s Catalog. As a layperson, the two songs do not sound quite ��alike – one is an upbeat pop song, the other a country tune. Song lyrics do fall under the scope of copyright protection, but Christmas imagery such as stockings and mistletoe fall under the doctrine and cannot be protected due to the generic or universal nature of the song’s theme.

If the case does go to trial, only a jury can decide whether Carey’s song “resulted in confusing the public in addition to resulting in a substantial loss of income” to Vance.

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

I recently attended the Copyright Society of the USA’s event, , which featured IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal in a discussion regarding the Supreme Court of Canada’s recent decision in The unanimous decision written by Rowe J. clarified provisions of the , ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by . You can read more about the decision in my summary published on the last week.

After brief introductions, the two speakers began by providing necessary context for the recent decision, including Parliament’s intentions behind the 2012 amendments to the Copyright Act. Prof. Gendreau first highlighted the three main copyrights enshrined in the Act’s : the right to produce or reproduce a work, to perform a work in public, and to publish the work. Section 3 includes several subsections which list various “examples” or “actions” encompassed within these rights – the relationships between the main rights and the subsections, Prof. Gendreau highlighted, were key questions before the court. The speakers also discussed a previous SCC decision that interpreted for the first time back in 2012; in a narrow 5-4 majority, held that the act of downloading a work did not amount to “communicating” said work to the public by telecommunication under section 3(1)(f) (para 4). Furthermore, “making available” is not a separate and compensable right, but rather part of the communication right encompassed within 3(1)(f).

Profs. Vaver and Gendreau briefly touched upon the use of international laws and treaties in interpreting domestic legislation, cautioning against cases of the “tail wagging the dog” in statutory interpretation. They emphasized the importance of interpreting domestic statute first, and international law () is a useful but secondary factor that provides context.

Interestingly, the speakers differed in their opinions about who the Copyright Act ultimately protects. While Prof. Vaver believed that the Act seeks to balance the rights of end users with original authors, Prof. Gendreau was of the belief that the ������’s protections lean towards the side of author. However, both noted that the SOCAN v ESA decision appears to freeze copyright as it is when the new technology is introduced, rather than growing alongside the subsequent adoption and growth. They both found that the SCC decision made a firm distinction between the acts of downloading and streaming, where in reality the line is blurred by a user’s ability to bookmark and cache online content.

What are your thoughts on the recent SOCAN v ESA decision? IP Osgoode invites you to share your thoughts in the comments section below.

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On July 15, 2022, the Supreme Court of Canada (“SCC”) released its for the case Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) v. Entertainment Software Association (“ESA”). The unanimous decision written by Justice Rowe clarified provisions of the ��(the “A����”), ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by .

Judicial History

In 2012, Parliament amended the Copyright Act to align copyright legislation with the , which Canada signed in 1997. Among the changes was the addition of section which was meant to clarify subsection ��defining “communication of a work or other subject‑matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

As the central authority for the approval of tariffs, the held proceedings to determine the amount of royalties to be paid, receiving submissions from various groups on how to interpret the new sections of the Copyright Act. , a music licensing organization representing over 175,000 music creators, publishers and visual artists, argued that s. 2.4(1.1) required royalties to be paid whenever a copyrighted work was posted on the Internet for public access. The Copyright Board concurred, deeming that the act of making works available was in itself a separately protected and compensable activity. In effect, there would be two payable royalties: one for when the provider makes the work available online, and another for when a user actually streams or downloads a work.

The Federal Court of Appeal the Copyright Board’s decision, concluding that Parliament did not intend to introduce the two-royalties system for users accessing works online.

Key Takeaways

Although differing in the exact standard of review for the Copyright Board’s decision, the SCC unanimously dismissed SOCAN and Music Canada’s appeal. The SCC found that the Copyright Board and SOCAN’s interpretation of the Copyright Act’s new sections undermined the purpose of the Act itself. As per the principle of , “distributing functionally equivalent works through old or new technology should engage the same copyright interests […] what matters is what the user receives, not how the user receives it” absent parliamentary intent to the contrary. Section 2.4(1.1) merely clarifies that a work is “communicated” when it is made available or uploaded – as , streaming begins when the work was made available online and continues throughout to the end user’s accessing of the work. Thus, section 2.4(1.1) does not entitle authors to an additional “making available” royalty for making the work available online. It is merely part of the public performance right enshrined in section 3(1)(f).

The SCC also addressed two non-copyright specific issues relevant to the larger practice of law in Canada. Firstly, the SCC recognized a under to apply for instances of concurrent first instance jurisdiction, which allows both administrative bodies and courts to have this first instance jurisdiction over a legal issue in a statute (). Secondly, the Court reiterated the role international treaties play in statutory interpretation. Although WIPO’s Copyright Treaty is relevant to the statutory interpretation of the Act, it cannot “overwhelm clear legislative intent” (). The SCC found that the Copyright Board erred by privileging the Copyright Treaty and Canada’s signatory obligations over the domestic Copyright Act in its interpretation.

The Copyright Society of the USA will host a , breaking down the decision and exploring its broader implications for all stakeholders in the arenas of licensing, collective administration, and enforcement. The event features IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal. It will be taking place virtually on Wednesday, August 3, 2022, at 12pm EST. Details and registration information can be found

Further reading:

Breakdown of SOCAN v ESA’s administrative law related holdings:

US Government’s Making Available Study:

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Michelle Mao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Big-name celebrities like and of the indie rock band have taken to TikTok to with the new marketing approach of creating .

TikTok has an established history of amplifying dance and music trends since acquiring the nearly identical app, . Its user base and viral power during the COVID-19 pandemic. Raenelle Manning, an IPilogue writer and the author of part I�� of this two-part article series on TikTok Viral Marketing explains more about TikTok as a marketing strategy.

�Ჹ�������’s details how she is unable to release music until she produces a “fake viral trend” to promote the new song. To the casual viewer, this type of restriction of her actions as an artist may seem to infringe on her rights as an artist. In fact, the top comment under her TikTok video expresses that Halsey should find a new record label that lets her release her music when she wants.

This sentiment plays into inherent feelings of property ownership and control over your property —in this case, your intellectual property (“IP”. But what are the legal underpinnings that tie Halsey's (and other artists’) ownership and control of their music?

The short answer, as usual in law, is that it depends. While artists may inherently feel like they are “held hostage” by their record labels, it all comes down to the that both the artist and record label agreed upon. found in recording agreements include rights granted, producer royalties, and promotions. For artists and creators and their intellectual property, the nature of “property/product” over which they are exerting “ownership” impacts the traditionally recognized IP rights.

In a , Nimmer describes IP law as a special existence between property law and contract law, where a product of the digital world is more closely tied to a contractual relationship on contractual terms rather than subject to property law guidelines for ownership and control.

Nimmer explains that for digital property and products because digital products almost always involve a transfer of information or data, either by transferring information upon another or into the open forum of the internet. In this case, the information to be distributed is music, and the distribution methods are governed by contract because the of the song must occur to make a profit. To distribute/release music, the terms of the contract play a great deal in defining the intellectual property rights granted and restricted around the piece of music in question.

For Halsey, when responding to why she cannot release her music, despite it being “her song,” she tweets: .” This likely means that to commercialize her music and distribute it publicly, the contract between her and her record label granted IP rights like control over the r, rather than Halsey. In exchange, Halsey would gain access to distributing her music publicly, without being limited to the open-source forum route, which often removes any IP right from the creator.

Another way to think about the IP rights granted/restricted in the case of music ownership is through the (sometimes criticized) theory of IP rights as a . In exchange for a product or service, IP rights may be given or traded away to the benefit of both parties. In his article, Professor David Vaver of IP Osgoode the example of , where patent rights are granted to inventors when they invent something that could benefit the public good. The bargain is for the exchange of exclusive IP rights to the inventor, and the government that grants the patent receives a product that would benefit their citizens.

Applying this framework, one could argue that Halsey bargained away her IP rights as a singer of the song to the record label in exchange for the that the record label offers. This would include specialized marketing, business expertise, and other commercial connections that a record company may have.

Considering artists speaking up against their record labels and attempting to establish ownership over their creative works, should these frameworks of commercialization and bargaining continue to define intellectual property in the music industry? There is good reason to revisit the framework of IP law commercially as digital products/creations/property become increasingly profitable and creators become more empowered to speak out for their creative freedom.

This article has a sister article on how TikTok marketing influences branding and artistic expression of artists in the music industry.

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