Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 25, Issue 3
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Tick-Tock; Is Time Up on TikTok?
Millions of Americans have downloaded the wildly popular social media app TikTok. What may be a mere source of entertainment for the general population also serves as a lucrative source of income for many who use the platform to promote goods and services or their public opinion on relevant news topics. When use of the app rose to the level of a national security crisis for the U.S. government, public outcry against threats of banning the app in the U.S. were heard across the country.
TikTok’s roots began in 2016, and the app quickly became popular among teens as a way for them to create and share music videos. The app has since expanded to include all types of content and serves as a source of news, information, and income.
The app has met a string of controversy since. TikTok caused concern with respect to intellectual property violations from the re-posting of proprietary content and the sale of counterfeit goods. In fact, the U.S. Customs and Border Protection is cracking-down on TikTok Shop, the online retail shopping platform available on the app, due to the amount of fake goods being sold. While the prices are often much cheaper on TikTok Shop, enticing customers that would normally shop on other online venues to flock to TikTok, consumers should be aware that they could also be liable and forced to pay fines or prosecution for purchasing counterfeit goods. Despite TikTok’s intellectual property concerns, it was not until 2020, during President Trump’s first term as president, that the app came under scrutiny by the federal government for being owned by the Chinese tech giant ByteDance.
In addition to privacy concerns regarding U.S. user’s personal information, there was fear that the Chinese company would leak information regarding its U.S. users to the Chinese government resulting in risks to the country’s national security. At the time, President Trump was unsuccessful in his attempt to impose a nationwide ban on TikTok. Nevertheless, many U.S. states and several other countries, such as, Australia, Canada, and India restricted use of TikTok in some form, such as on government employees’ phones or other government devices.
Jumping ahead to 2024, the Biden administration proposed and the government enacted a bill that includes the Protecting Americans from Foreign Adversary Controlled Applications Act. The Act calls for a nationwide ban on TikTok and other social media apps owned by foreign adversaries deemed to be a threat to national security by a President. In response to the Act, TikTok along with eight TikTok content creators filed a lawsuit in U.S. federal court alleging the ban is unconstitutional and violates free speech. The matter went before the U.S. Supreme Court who, on January 17, 2025, upheld the constitutionality of the law and ban on TikTok.
Then, on January 18, 2025, in a preemptive move before the ban went into effect on January 19, 2025, TikTok voluntarily removed the software from access by U.S. users causing pandemonium and a flurry of posts leading up to the removal from social media influencers stating they were soon to be unemployed. However, the ban only lasted a mere 12 hours before TikTok was again accessible to those U.S. users who had already downloaded the app.
On the eve before his second inauguration, contrary to his prior stance on TikTok, newly re-elected President Trump declared he would be issuing an executive order delaying the ban. The executive order delays the ban for 75 days to allow the Trump administration time to find a suitable U.S. buyer that would be willing to enter into a joint venture with ByteDance splitting ownership of the company.
For now, what the future holds for TikTok remains uncertain. How splitting ownership of the company will protect the U.S.’s national security interests, user privacy information and the sale of counterfeit goods, that previously concerned so many, including President Trump himself, remains to be seen. For the time being, TikTok fans, social media influencers and TikTok Shop consumers are elated to once again have use of the social media app and appear to be back to business as usual.
Linda Monge Callaghan is a partner at Fishman Stewart, specializing in intellectual property law. Linda focuses mainly on trademark and copyright law, including foreign and domestic prosecution and litigation, as well as agreements and assignments.
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A White Out: Holiday Cheer for Collegiate Sports Licensing
Fish Tank: Newsletter Volume 24, Issue 29
This holiday season, many will hope it’s a white out, a classic white Christmas, as they unwrap gifts of licensed collegiate apparel. While thanking the givers of those gifts is probably the right thing to do, I’d say thank the White Out.
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In the US, Thanksgiving is quickly approaching. For many, Thanksgiving and (American) football go hand-in-hand, with the Detroit Lions’ game as much a staple of the holiday as turkey and pie. However, this year’s game arrives amid controversy: Lions’ legendary Hall of Famer Barry Sanders is facing a lawsuit alleging copyright infringement.
After three years of litigation, a court has held that the “beat that goes on” for Cher’s right to continue receiving royalties on songs created during her marriage to Sonny Bono, despite attempts by Sonny’s widow, Mary Bono, to invoke federal copyright termination rights to end those payments.
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In 2023, California artist Joe Morford lost his copyright infringement lawsuit against Italian artist Maurizio Cattelan. Morford claimed that Cattelan's viral artwork "Comedian," which features a banana duct-taped to a wall, was a copy of his own work, "Banana and Orange."
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