TikTok, TickTock — Can You Claim Copyright on a Dance Move?

By Carolyn Juarez

TikTok is the lockdown app of the moment, with user numbers surging during COVID-19 social distancing restrictions. In what seems like just a few months, the app has gone from being a new fad to a lockdown essential with everyone from Justin Beiber to the local police department getting in on the act. While everyone is uploading dance videos and cute pet videos, the platform does not come without its copyright problems.

TikTok has given everyone a creative platform to share their video content publicly, whether that be a dance, a funny cat video, or a joke. TikTok users upload a video to their account, and share it with their followers, who copy, share, reuse, and repost it to millions in just minutes. If an influencer with millions of followers picks up your content, it is likely to go viral and gain you thousands of followers — if you are credited.

However, what if you are not?

Often, influencers that copy content such as a dance move and redo it themselves, or share the piece to their followers, receive the credit for the content created. The Renegade, the world’s hottest dance move so far in 2020, is a great example. The dance, created by 14-year-old Jalaiah Harmon and her friend in September 2019, went viral. They only had a few thousand followers on TikTok. The dance was picked up by a dancer with 200,000 TikTok followers; it was then copied and shared by the Kardashians, Lizzo, and YouTuber David Dobrik, who made it go viral. None of them credited Harmon. This led to a global outcry, and those influencers were publicly slammed for not crediting Harmon.

There was a similar issue in 2018, with a series of lawsuits against Epic, the creator of the video game Fortnite. Artists who had created dance moves like the “Floss” and the “Carlton” sued Epic for copyright infringement because the company picked dance moves and embedded them into Fortnite. Players could buy the dance moves and have their avatars express the dances in the middle of the game. Fresh Prince of Bel Air actor Alfonso Ribeiro, who created the Carlton dance move (known on Fortnite as the “Fresh”), actually applied to register copyright for the Carlton. However, he was rejected under the Copyright Act standards that social dance moves are not copyright-eligible. Even the creator of the 26-pose flow for Bikram yoga, Bikram Choudhury, was not able to register a copyright on his series of movements.

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Copyright Act

It can be nearly impossible to ensure that the original creator of a dance move is getting credit for their work and even harder for them to protect their content. It was not until the Copyright Act of 1978 that choreography became copyright-eligible work. However, the protection added for choreography was limited in scope. Short series’ of dance moves, known as ‘social dances,” are not protectable. Copyright protection for dance is only available for longer, choreographed pieces. According to the 1978 Copyright Act: ‘Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole… Choreography and pantomimes consisting of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection.’ To paraphrase, the Copyright Act will protect a full-length ballet, or an Alvin Ailey performance, but will not protect a dance composed of a few basic human movements pieced together for a few seconds, such as our Renegade example.

To put it in context, trying to copyright the Renegade or the Carlton, or even yoga poses, would be similar to trying to copyright a few common words strung together vs. a sentence, chapter, or an entire book. For example, writing “it was the best,” is not necessarily a copyright-eligible literary or dramatic work, but “it was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness…” would certainly be copyright-eligible (if A Tale of Two Cities were not already in the public domain). Permitting a few words or dance moves to be copyright-eligible could create a legal morass and an enforcement nightmare. Can you imagine if the creator of the Dab had been able to copyright the move? YouTube embeds copyright tools into its algorithms, so when people post YouTube videos that have copyrighted music playing in the background, YouTube can remove those videos. If dance moves were copyright-eligible, YouTube would have to create a motion recognition algorithm to take down anything that has a Dab in it, which would be verging on impossible. I cannot even imagine how much of the content on YouTube has somebody Dabbing in it.

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Taking Credit

Another challenge, particularly with the viral nature of social media content, is figuring out who first created the dance content — the original “author” of the move. Because many dance moves end up in popular culture, it is difficult to say who first did them. Somebody may have seen a spontaneous dance move in a club and been inspired, then recreated it. It is so difficult to tell where some of these moves originated.

So, who owns a viral dance? Is there such a thing as ownership of something like that? For the Renegade, it is a little bit different because it was a series of several different moves that Harmon combined accompanied by a song. When you are talking about a simple dance move like the Dab or Running Man, it is more difficult to determine who created it first. “Ownership” can be difficult to fact-check in the social media world. Somebody may claim that they were the first person to make a move, but there is no real way of checking, especially on platforms like TikTok, where there is no creation timestamp. There is a difference between ownership and credit — ethically. You may not be able to prove that you are the original owner and the one who created the dance, but users should credit you when re-creating a move they saw you perform or sharing a video you created.

Relying on Community Enforcement

Unlike a photograph, where the creator can embed watermarks or copyright restrictions into the metadata of the image, there is little to no technologically that a creator can implement to protect a social media video clip. So far, ownership or credit claims on TikTok have relied entirely on community enforcement. When somebody has co-opted or popularized somebody else’s dance move and tries to take the credit for it, the comment section of that clip typically becomes a valuable source tracing method. People will go into the comments and publicly chastise the poster for trying to take credit for somebody else’s work. It is a powerful example of how social media can police itself. The social media community itself can be a force for ethical enforcement, even if there is nothing the creator can do legally.

Interestingly, it seems that younger users of social media platforms have a different view of copyright protection for their content than the traditional paradigm. Many creators love watching their content being popularized and going viral and it can boost their followers, too — when they are given credit. For the social media generation, it is often more about the ethics of crediting the original creator and less about enforcing their rights to take down the content.

So, if you are going to share anything on social media, copy a dance move or a viral piece of content, make sure you credit back and tag the person who created it. It is just the right thing to do.

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