On July 24, video game publisher Activision filed a lawsuit against creator and music critic Anthony Fantano (@theneedledrop), but the end goal is not likely what you’d expect. The strategic move by Activision aims to cut off Anthony Fantano’s demands for a six-figure payout and from filing his own lawsuit against the company.
In a now-deleted TikTok, Activision used a portion of Anthony Fantano’s viral, 19-second TikTok original sound to promote the creation of custom sneakers depicting characters from the “Crash Bandicoot” video game franchise. The original sound is an extract from Fantano’s TikTok Duet in which he reacts to another user’s video of a pizza being cut over 15 times into absurdly small slices. By the end, Fantano yells, “IT’S ENOUGH SLICES!”
Slicing Off Fantano, Legally
According to the complaint, Fantano sent a settlement demand letter to Activision in June, claiming the game company used his voice and video without permission. Activision defended using the audio clip but agreed to take down its video.
By July, Fantano’s legal counsel still demanded a lot of dough (a six-figure sum in line with what other commercial users had already paid per the complaint), claiming Activision’s use of the audio clip resulted in a false endorsement.
Activision makes clear that Anthony Fantano’s legal team targeted the video game company, claiming the ad infringed upon Fantano’s intellectual property rights. Specifically, the purported demands by Fantano for a license fee or some other settlement links to legal claims stemming from false endorsement over the “pizza slice” sound clip and resulting rights of publicity over Fantano’s voice that come along with the use of the clip.
Fantano’s argument, based on a civil action under false advertising law, would be that the use of his voice “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” of his brand with that of Activision’s video game, or his approval of the sneakers featured in the Activision TikTok.
Activision Seeks a Fast-Tracked Decision
The complaint reveals that Activision is asking for two “declaratory judgments” from the court: that Activision is not engaging in a false endorsement and that Activision isn’t violating Anthony Fantano’s right of publicity.
A declaratory judgment is a legal tool that anyone can use to have a judge make a fast-tracked decision on something without waiting for someone else to file a lawsuit. It’s a tactic common with intellectual property disputes in response to a cease-and-desist letter from a rights holder.
From a strategic standpoint, Activision could pursue this declaratory action to avoid drawn-out litigation during its high-profile acquisition by Microsoft.
The Sounds of TikTok
By default, whenever a user posts a TikTok, the audio from the video is available for other users to use as part of the Sounds library, including as part of the Commercial Sounds library. Activision argues that Fantano contributed the audio clip to the Commercial Sounds library, expressly allowing Activision and other users the right to incorporate the audio clip into their own videos, even for a commercial purpose. This permission is based on the broadly drafted license grant under Section 7 of the TikTok Terms of Service.
However, separate from the license needed to re-use the sound itself are the underlying name, image, and likeness (“NIL”) rights that Fantano can claim under state law, protecting a person’s rights of publicity. For creators, retaining control over and monetizing their NIL rights is a vital aspect of brand and sponsorship deals.
Based on the outcome of this case, there’s a potential danger for creators that broadly drafted platform terms of service might grant valuable intellectual property usage rights to anyone, including brands that share commercial messages using a creator’s work shared to the platform.
Activision points to another portion of Section 7 of TikTok’s Terms that incorporates a broad waiver from users of their publicity rights. It states, in part, “You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof.” The argument is that Activision didn’t need to secure direct permissions from Fantano when he had already granted those rights to TikTok.
Activision also argues the “meme” status of Fantano’s audio clip supports their assertion that “no reasonable consumer would mistakenly believe that Fantano […] sponsored or endorsed Activision or its video.” Activision references an interview from the “Visionaries” podcast with Jacob Wolf in which Fantano admits: “There [are] millions of people that know that sound that have no idea that I made it. It’s not killing me that it isn’t associated with me.”
Depends on How You Slice It
There is no dispute that Activision never directly obtained a license from Anthony Fantano. Generally, is it better for brands to work directly with a creator to secure licenses and permissions over the content they reuse? Sure! However, without such a direct relationship, courts have applied a social media platform’s terms of service to make a legal decision.
This was most recently seen in litigation involving photography lawsuits for embedding Instagram posts on news outlet websites. The court held that a photographer gave a license to Instagram for anyone to reuse the photo through the app, including embedding it on a website, and therefore, the license extended to other Instagram users.
To date, most, if not all, lawsuits or public disputes surrounding content use on TikTok have focused on improperly licensed music or the reuse of viral videos for commercial purposes. While not many public legal cases have been of note addressing this issue, it’s possible there have been private and confidential settlements between rights owners and creators or brands that are using audio only. Activision’s complaint alleges that Fantano’s legal team has secured settlements, which wouldn’t be public record.
Regardless of whether its use of Fantano’s clip was illegal, Activision is part of the multi-billion dollar, publicly traded game company Activision Blizzard. In the “Visionaries” podcast interview, Fantano argues, “For somebody who literally has nothing to their name other than, ‘Hey, I have this popular song or sound on TikTok,’ and for them to not see any kind of benefit off of that whatsoever is terrible.” There’s an argument here to be made that it would be a good business practice to ensure all creators in their ads are compensated fairly for their creative ideas and contributions.
Currently, options are limited or non-existent across platforms for revenue share from asset reuse and remixing. YouTube currently limits re-use and remixed content revenue sharing across Shorts to music content. Its website notes, “No other category of third-party content will be credited as making a contribution to a Short at this time.”
Outside of platform offerings, PostMarket is an example of a licensing platform that facilitates options for creators and brands to obtain consent, incorporate attribution, and offer compensation for the content shared and re-shared or re-mixed across the internet.
As of now, though, everyone wants a slice of the revenue pie, but only select stakeholders—platforms and remixing creators or brands—are able to get a hold of the slices.
Original content creators are the ones left yelling, “Save me a slice!”
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