Fousheé and Deep End: Moral Attribution on TikTok
On May 23 2020, Fousheé (@kungfou) posted a TikTok video sitting in front of the camera staring into the distance singing and playing a song on the guitar. The song is a sombre ballad. The lyrics match the musical tone. The on screen text states:
The irony of this is… I’m actually the original singer in this song… but nobody knows or believes me… and it’s legit making me go off the Deep End.
In April 2020, a clip of the Deep End Freestyle had gone viral as an audio template on TikTok, which refers to the ways that recommender algorithms on platforms strive to present aesthetically similar content to users by promoting popular content ‘templates’ (Leaver, Highfield, & Abidin, 2020), in this case using sounds. The first few bars of Deep End Freestyle template are an altered sample of Fousheé’s main hook. Then the beat drops as a male voice joins in with the line “my body different.” The Deep End Challenge template lent itself well to TikTok virality because there was no specific dance or action involved. TikTokers recorded themselves doing a wide array of mundane activities that were punctuated by doing something unexpected when the beat drop, like catching a flipped an egg, making a weird face, suddenly dropping out of frame, or doing another dance.
When the challenge first started to take off, many videos that featured #deependchallenge featured an audio clip available in the internal TikTok audio library. Tapping on the sound icon in the bottom right corner on a Deep End Challenge video would display the audio page in the TikTok audio library with information about the song, usage statistics, and shows other videos that have used the audio. On TikTok, the song credits Sleepy Hallow, a Jamaican rapper based in Brooklyn, as the original artist. Searching for the song on other platforms, like YouTube or Spotify, Sleepy Hallow is also credited as the original artist with no mention that the song featured or was written by another artist. Listening to Deep End Freestyle and Fousheé’s Deep End TikTok video side-by-side makes clear what has happened here: Fousheé’s song was sampled by Sleepy Hallow.
The practice of sampling is not itself noteworthy in the music recording industry. The practices and policies of sampling have been developed through decades of innovation and controversy, and they are relatively well-established in 2020. Artists who want to sample someone else’s music must pay a licensing fee and sampling artists often attribute credit to the original artist being sampled; Gangsta’s Paradise by Coolio, for example, credits Stevie Wonder as composer. Alternatively, artists and producers can sample from royalty free-libraries, databases of songs and audio clips that can be used for free or for a free without any obligation to credit or pay licensing fees to the composers or songwriters. The use of these libraries have become more widespread in recent years as copyright enforcement systems have become more sophisticated and pose a greater risks to digital creators (Kaye & Gray, 2020). A handful of these digital audio marketplaces, like Swedish Epidemic Sound, have ballooned into massive repositories of audio that can be accessed for a fee and used for commercial purposes, similarly to stock photo repositories like Getty Images.
Fousheé’s original song, Deep End, had been listed on Splice, a digital audio marketplace where artists and producers can buy and sell samples and sample packs used in digital audio workstations. The Splice terms of use govern licensing arrangements between users assigning creative commons licenses for public tracks and a waiver of rights for public tracks (Splice, 2021, Section 5.h.). It wasn’t a fluke or an accident that Fousheé’s music had ended up on Splice, as she explained in an interview with NME:
It started out as one of a collection of royalty-free samples that I had made in 2018, and then Sleepy Hallow picked it up. When I wasn’t credited and people didn’t know that I was responsible for that sample, I decided to put it out as a full song (Fousheé, personal communication, O’Reilly, 2020).
Sleepy Hallow’s Deep End Freestyle was released in March 2020 and quickly became an audio template on TikTok associated with #deependchallenge. Fousheé, who previously hadn’t been very active on TikTok, found out from a friend that her song was blowing up on TikTok and decided to release a full version of the song (Elder, 2020). The full version of Deep End was released in May, just prior to the onset of a major historical moment in the US.
On May 25 2021 in Minneapolis, MN, George Floyd was murdered by a member of the Minneapolis Police who killed Floyd on camera by kneeling on his neck for 9 minutes and 29 seconds. The killing sparked waves of protest led by or in solidarity with the Black Lives Matter movement around the world. Protests were held across the US with added social distancing measures and personal protective equipment given that the murder of George Floyd took place at the height of the first COVID-19 wave in the US. After three months in lockdown and the killing of yet another unarmed black civilian in police custody, the original lyrics of Fousheé’s Deep End unintentionally encapsulated the mood perfectly:
It was a very emotional time — people were literally going off the deep end after everything that has happened in 2020, and I wanted to create something that acknowledged the pain but also gave people strength. It’s strange to think that the original 2018 sample spoke to the future, in a way (Fousheé, personal communication, O’Reilly, 2020).
Fousheé’s video asserting that she was original creator of Deep End was posted two days before Floyd’s murder and had already garnered significant attention from TikTokers who wanted to share their thoughts and opinions on the situation. Comments on the video posted on May 23 and 24 called for TikTok or Sleepy Hallow to recognize Fousheé as the original artist, expressed frustration that she had been uncredited, and asked where they could find Fousheé’s other music to support her work. Others posted their own videos discussing Fousheé’s video, such as urging viewers to give her credit and stream her music.
The video went viral the same day it was published. Fousheé posted a comment on May 24 with over 80k likes on the video:
Y’ALL JUST CHANGED MY WORLD IN A MATTER OF HOURS. I’M TEARING UP. I CAN’T THANK YOU ENOUGH!!!!!!!!! MADE MY MOMMA SO HAPPY 🥺🥺🥺🖤🖤🖤
After May 25 the meaning of and discourse surrounding Deep End took on new meaning. The song was championed as an anthem of the movement and the injustice to Fousheé being uncredited for her work illustrated yet another instance of the systematic oppression of Black Indigenous and People of Color in the US and around the globe. The initial video was flooded with further outpourings of support for Fousheé and the issue of being unattributed to Deep End Freestyle gained more visibility on TikTok and beyond. Shortly after the video went viral, Fousheé was retroactively added as a featured artist on Sleepy Hallow’s version (Sleepy Hallow, 2020) and she was able to produce and release a music video for her original full version (Fousheé, 2020).
Fousheé and Deep End highlight the value of proper attribution for creators on digital platforms like TikTok. The right of attribution is a moral right of copyright that protects the right to be recognized for one’s original creative works (in some jurisdictions). There is generally no expectation of payment or royalties associated with the right attribution as there would be with economic rights of copyright, such as the rights to reproduce, distribute or perform a creative work. Moral rights have figured less prominently in the development of copyright policy in the US, the copyright regime that governs Fousheé and Sleepy Hallow who are both US-based artists. Economic rights have clear consequences for violation; using someone else’s copyrighted work without their permission means they might have standing to take legal action. Penalties and remedies for moral rights are less straightforward in the US, and often it’s not about the money.
At no point in the video posted on May 23 (or any thereafter) was Fousheé calling out Sleepy Hallow for taking her song, demanding payment, or criticizing TikTok for allowing the audio to circulate without giving her credit. The video simply expressed her frustration that nobody believed that her full version was the original version of the song and not a cover of Sleepy Hallow’s track. In some ways, the initial viral response to Fousheé’s video redressed the attribution issue. The TikTok community consensus agreed that she was the songwriter of Deep End, regardless of whether she was credited by TikTok’s audio attribution system, and she was given the recognition she deserved as the original creator.
Fousheé is not alone in experiencing these kinds of attributional issues on TikTok. In 2020, my colleagues and I conducted a study of sound attribution on TikTok (Kaye et al., 2021). We found that audio clips in nearly one third (32%) of our sample of 1000 videos were misattributed, meaning that TikTok had automatically assigned credit to someone who did not create the audio (such as another TikToker or another artist). To overcome this, some creators in our sample (6%) located and manually attributed credit to the original creator by using hashtags, on screen text, or captions. Over the past two years, TikTok has improved it’s methods for properly giving credit to misattributed audio and songs, but there are still countless artists and creators who fall through the cracks. Instances of ‘falling through the cracks’ are especially damaging to creators who belong to marginalized communities and were already fighting for visibility on these platforms. TikTok and other digital platforms mutually shape and are shaped by the cultural politics of broader society, which is why misattribution on digital platforms is greater than a TikTok issue or copyright issue. It’s a moral issue that needs to be addressed in broader society.
In this specific case, however, the outcomes exceeded Fousheé’s expectations:
It got such a response — way more than on any of my other social accounts. Honestly, I’m not sure where I’d be without it. I think it’s a representation of our world today (Fousheé, personal communication, O’Reilly, 2020).
In August 2020, Deep End Freestyle feat. Fousheé went RIAA Gold, which Fousheé celebrated in a response to a negative commenter on TikTok. In March 2021, Fousheé was named Billboard’s R&B Rookie of the Month (Michell, 2021). Fousheé released Single Af in November 2020 and Gold Fronts (feat. Lil Wayne) in March 2021.
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