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Opinion

#BlackTikTokStrike and Choreography Copyright

Anyone using TikTok knows that the majority of the immensely popular dances on TikTok are created by young, Black creators. The #BlackTikTokStrike on TikTok is indicative of a problem that Black artists have long had: their work being appropriated by white artists with no credit given to the originator and no revenue shared.

Instead, influencers such as Addison Rae and Charli D’Amelio profit handsomely from performing the dances based 100% on the choreography created by Black artists. The good news is that the strike appears to be working. Not only has it prevented Megan Thee Stallion’s latest song, ‘Thot Shit’, from taking off the way her previous singles have, but the mainstream media from the Washington Post to the venerable NY Times have devoted coverage to the strike. This in turn has shone a spotlight on the inequities of the platform, causing celebrities to speak up for these creators and right their wrongs. However, there is still a long way to go.

TikTok did not respond directly to the strike, and instead released a statement highlighting its commitment to diversity and inclusion: “Over the past year, our teams have continued working to elevate and support Black voices and causes, while fostering an inclusive environment on our platform and within our workplace,” it said. 

The company added that it was training staff “to better understand more nuanced content like culture appropriation and slurs” and promised to give users “tools to empower our community.” 

Although the protest does seem to be having an effect, as an entertainment attorney I immediately think of what legal protections could be afforded to these artists. For example, the question of whether copyright protection could be available is an interesting one. It boils down to one simple question: can these dance moves receive copyright protection? The short answer is that simple dance moves on their own are unlikely to qualify for copyright protection, but actual choreography, or a related set of dance moves that show “true creative authorship,” may in fact be eligible for copyright protection. 

The Copyright Act of 1976 added “choreography” as a distinct category of copyrightable authorship. Though the statute does not provide an actual definition of choreography, the Copyright Office generally sees choreography as the composition and arrangement of a “related series of dance movements and patterns organised into a coherent whole.” It appears that Congress intended to extend copyright protection to more fleshed-out choreography rather than individual dance moves. 

In fact, the Copyright Office has made it clear that certain dance and non-dance movements on their own fall outside the scope of copyright protection. These include commonplace movements and gestures such as the basic waltz step, or the second position in ballet, “social dances” such as ballroom dances, and ordinary “motor activities and athletic movements”, such as yoga and general exercise routines. 

Copyright in regards to TikTok 

In general, to assess whether a TikTok choreography could be copyrighted involves looking at a number of factors. For example, whether the dance involves rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage, or if it’s a series of dance movements or patterns organised into an integrated, coherent, and expressive compositional whole, etc. 

It would be interesting to see whether any of the TikTok dances created by Black creators would be afforded protection in the form of a copyright registration (note that copyright automatically arises upon creation but registration with the U.S. Copyright Office affords certain protections such as statutory damages and attorney’s fees in successful litigation). 

A challenge here would be proving that a creator did in fact create the dance originally since videos are not timestamped. But if Black creators had copyright protection, this would give them more power with respect to being credited, as well as the potential to be compensated for their work. 

There may also be pitfalls since dealing with the thousands (and potentially millions) of users on TikTok who recreate these dances could be unwieldy and frankly, impossible. But should the platforms not step up to enforce protections for these creators, seeking out copyrights for the dances may be an avenue worth exploring.

Credit to Benjamin Little, Esq. for their input on this article.

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