Over the last decade or two, there have been dozens of difficult licensing negotiations between rightsholders and online music platforms — some of which played out in public or even resulted in content being unavailable online.
Just this week, around the time YouTube temporarily took down music by SESAC songwriters, the digital rights licensing collective Merlin informed its member labels that TikTok “walked away” from talks to renew its license agreement and planned to deal with labels individually. This letter Merlin sent to its members says TikTok’s goal is “fragmenting the Merlin membership, in order, we believe, to minimize their pay out.”
In one way, this is an old story. Most online platforms have so much market share that it’s hard for rightsholders to negotiate good deals: There’s just one TikTok, just like there’s just one Facebook and just one YouTube. But there are thousands of labels. Since smaller labels need giant platforms more than those platforms need labels, they need to bulk up, in order to balance market share against market share. For indie labels, that means either making a distribution deal with a major or joining Merlin, which negotiates on behalf of its members. (This same idea has fueled a merger mania throughout the media business, as movie studios and book publishers merge to better deal with Netflix or Amazon.) Sometimes, though, platforms push back.
In another way, this is an old story with a new twist. TikTok has suggested that part of the reason it wants to change its deal structure is that it’s concerned about fraud, specifically the alleged delivery of recordings and remixes by labels that do not own the rights to them or assert ownership incorrectly — a problem that sources say comes disproportionately from a few companies. This seems like a reasonable concern, and it’s one that’s widely shared, although the problem is hardly unique to Merlin. Plus, it should be possible to exclude a small number of bad actors from a new Merlin deal, and it’s hard to imagine that dealing with indies directly wouldn’t give TikTok a financial advantage.
In yet another way, this is a whole new kind of negotiation, the likes of which the music business hasn’t seen since the early days of YouTube. These days, most online platforms need to play nice, or at least sort of nice, since negotiations that turn ugly in public tend to be distracting from other public policy priorities, and because today’s negotiating counterparty could become tomorrow’s business partner.
TikTok seems less concerned with these issues: It went without a Universal Music deal for about three months early this year and then didn’t renew its NMPA-blessed deal with independent publishers. Partly, that could be because it’s already facing an existential policy issue in the form of a ban in the U.S., or at least a forced sale to prevent that. It also seems to think that music doesn’t drive as much value — which could be why it’s shutting down its nascent TikTok Music subscription service. Whether or not the company is right, its attitude toward rightsholders can be very different.
TikTok is also developing a reputation, fairly or not, for being less sentimental about the culture business than other platforms. For years, most online platforms have made the case that rightsholders are better off with the deals they’re offering, because of the exposure they offer — think YouTube or Spotify. TikTok clearly has significant promotional value, but it tends to act more aggressively. Or maybe its other reputational issues are so significant that pissing off music rightsholders just isn’t as big a deal.
That could change — TikTok’s Merlin strategy has indie labels rattled because it could splinter the rights group. If the platform’s gambit works, other companies could follow and Merlin could end up in a weaker position. The bigger indies would be fine. Others might look for leverage from the major labels’ indie distribution companies, like The Orchard (Sony Music) and Virgin (UMG), which would further undermine Merlin. This would damage the whole indie ecosystem — especially the small labels run by creative founders who don’t have the infrastructure to negotiate as smartly as Merlin.
There’s also a chance that this won’t be as easy as TikTok thinks. Going around Merlin could save it money, but if it’s so simple you wonder why no other platform has tried it. One reason is that Merlin deals cover a wide range of labels and content, some of which could be hard to get otherwise. Another is that it’s easier to do one negotiation than hundreds. Assuming, of course, that TikTok is serious about negotiating, as opposed to simply sending a letter with deal terms that it expects rigthsholders to accept.
