TikTok Makes Some Users Ad Stars—Without Asking

Advertising Law

Are you a TikTok user? If so, you might be surprised to find yourself in the social video platform’s recent ads.

In one example, TikTok user Elijah Jay started hearing from friends that they had seen one of his videos, in which he performs a stunt involving swallowing balloons, in a Snapchat advertisement for TikTok.

While pleased at first, Jay told AdAge he later wondered, “Why didn’t they let me know they were going to do that?” As an aspiring digital media star, the 23-year-old Los Angeles resident wants to be an influencer hired—and paid—by companies for his social media presence.

“I’m not getting anything out of it,” Jay told AdAge. “When they’re getting everything.” Not surprisingly, he took his gripe to social media, tweeting, “Hey @tiktok_us why are you using my video as a Snapchat ad to promote your app? And [where] is my money?!”

Other users don’t appear to mind the exposure. User Radd Shogo was “so hyped” when he learned that he was featured in a TikTok ad and told AdAge that he had reached out to the company about additional opportunities. “I’m cool with it,” he said.

TikTok is not the only social media platform that turns content posted by users into advertisements, but there are potential legal issues with using such content without the users’ permission, especially where the user is featured in the content. As with most online platforms, TikTok retains a broad usage license for all content posted on its platform.

Specifically, the terms of service state, “You or the owner of your User Content still own the copyright in User Content sent to us, but by submitting User Content via the Services, you hereby grant us an unconditional, irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide license to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorize other users of the Service and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.”

While TikTok’s terms of service address copyright licensing, there are potential issues under state right of publicity laws. Right of publicity (ROP) is, generally speaking, a right of an individual to control and profit from the commercial use of the individual’s name, likeness or other forms of personal identification, and is recognized in varying degrees under state statutory or common law. Under ROP laws, commercial use, such as advertising, of such personal identification requires the individual’s express consent, which in some states—such as New York—must be in writing. 

That some users are unhappy when they see their posts on Snapchat provides a reminder to companies to carefully consider their strategy when they use content without ensuring that they have obtained the necessary permission.

Why it matters: Using user content in ad campaigns can create a compelling message for platforms. To avoid upsetting their users or creating potential legal issues, companies should think twice about how they use content and ensure they have appropriate consents for the contemplated use.



pursuant to New York DR 2-101(f)

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