Informal directions regarding IP usage in social media captions raise questions about contemporary licencing.

In April this year, TikTok user Megan Boni (@girl_on_couch) went viral after posting a video featuring an original a cappella song with the lyrics "I'm looking for a man in finance / trust fund / 6'5 / blue eyes".
 
Her caption read, "Can someone make this into an actual song plz just for funzies".
 
If you've frequented a gym or night club recently, you'll know that David Guetta and Ted Billen did just that. The remix "Man in Finance" uses the song from Boni's TikTok video on repeat over a highly synthesised electronic beat, and now sits on the top 100 Official Singles Chart, with over fourteen million plays on Spotify. It is fair to say it is the archetype of an earworm.  
 
The original nineteen second video itself has garnered over 3.9 million likes, 56.8 million views and several lyric spin-offs; Boni now has a music deal with Universal.
 
So it seems everyone is happy. Of course, as lawyers we cannot help but ask what if things had gone wrong? Just for funzies.
 
Let's assume that instead of landing a deal with a record label, a producer took Boni's song, created a new song and exploited it commercially without a legal agreement. What rights might she have under Australian law?

Copyright protects certain works and subject matter (including musical works). In Australia, copyright comes into existence automatically upon creation, and grants the owner of the copyright certain exclusive rights (such as copying).
 
In this case, Boni's TikTok video is protected in copyright. Because Boni is the creator of the work, the exclusive right to use, reproduce or otherwise manipulate her posted material originally vests in her. Anyone who wants to use it needs her permission.
 
But what if someone was adapting and not technically "using" her work? Is it okay, for example, to be "looking for a brand new lounge couch / comfy / quite wide / pin striped"? Answering this question is more complex.

Adapting works always requires permission from the copyright owner, unless the action falls within a fair dealing exception (see below).
 
For the creator of the adaptive work to then acquire their own copyright protection, the adapted product must be sufficiently original. But "sufficient originality", unlike Boni's man in finance, has no quantitative threshold. The test is whether the adaption has an unreasonable objective likeness to the original material.

Copyright is transmissible insofar as the owner's whole right can be transferred to another person. This is different from licencing which conveys only permission to use.
 
Boni's caption‑requesting that someone use her idea to make a song‑seems akin to a licence. Is it?

A licence is an agreement through which a copyright owner (licensor) can grant others (licensees) the right to use (but not own) their copyrighted work. Three main kinds of licences exist:

    i. Exclusive licences which are the most restrictive and grant only one licensee the right to use the copyrighted work, typically at the exclusion of the licensor;

    ii. Non-exclusive licences which are broad and allow multiple licensees simultaneous use of the copyrighted  work. This includes the licensor; and

    iii. Sole licences which lie in between, allowing one licensee and the licensor the right to use the copyrighted work.

Licences don't necessarily require consideration, nor must they be express, or in writing. So the bar is low…low enough for a late-Tuesday-night-post-for-the-lols to constitute a formal licence? Possibly. If a non-exclusive implied oral license is permissible at law, so too, it would seem, should a clearly written TikTok caption. Or perhaps that gives too much power to the trivial space below our posts. 

Boni's caption might be construed as a valid licence to use her work to an extent. However, there remains a question as to what extent.
 
On one reading of her words, the license may only extend to creating an actual song; not it's further distribution and commercial exploitation.

A commonly sighted defence to copyright infringement is "fair dealing" which exempts conduct amounting to dealing which is fair for the purpose of:

   i. research or study;

   ii. criticism or reviews;

   iii. parody or review;

   iv. news reporting; or

   v. the giving of professional advice by a legal practitioner.

Boni's original TikTok was satirical. It is possible, in our imagined scenario, that its remix "Man in Finance" could be deemed the same.
 
If so, there is a further question as to whether the use is 'fair'. Whether a use of a work will be considered fair is based on a range of discretionary factors. In the present case, mere sampling of the original sound coupled with commercial exploitation of the resulting work is unlikely to be found to be fair in Australian courts.

The use of social media is going to continue to present unique challenges to the Australian copyright law. New digital platforms bring new IP issues and warrant fresh legal consideration. We shouldn't need a "Man in Finance" to tell us that.