A Tale of Two TikTok Titans: Equitable Copyright in the Age of Social Media Platforms

Since the nation’s founding, copyright law has worked to strike a balance between incentivizing artistic creation and allowing such creations to circulate among the public. The Copyright Act of 1976 codified the prevalent common law doctrine aimed at this balance: fair use. Yet, fair use often fails to create clear expectations for how courts would likely find in specific cases. This doctrinal uncertainty is exacerbated when paired with the realities of online fan communities. The current interaction of copyright law with online communities sees copyright holders attempting negotiations themselves to define a satisfactory relationship with creators of fan adaptations of their work. There are few clear guidelines on how to accomplish such a feat clearly and fairly, however. In recent years, two notable copyright holders have attempted such extrajudicial agreements. First, Disney successfully facilitated the transition of a musical based on its 2007 film Ratatouille from a TikTok trend to multiple authorized performances that generated millions of dollars for charity. Second, Netflix struggled to negotiate a mutually beneficial deal with two TikTok creators who had composed a musical based on its hit television show Bridgerton, and eventually, the conflict drove the streaming giant to litigate the issue. This Note argues that given the uncertainty these two examples represent, particularly in the face of Netflix’s failed attempts at private ordering, it is time for copyright law to adapt to the modern age and expand the scope of implied licenses to allow consideration of partial acquiescence and laches in cases filed against online fan creators.