TikTok, Dance Creators, and Copyright Complications
Crystal Broughan, Intellectual Property Attorney Aug 12, 2021 in Copyrights
Even if you do not have an account on TikTok, you have likely heard of the social media platform. After all, it became the most-downloaded app in 2020 after then-President Trump attempted to ban it.
Users love the platform because of how easy it is for people to share short videos. One of the most popular genres of videos that people post is dance. In fact, quite a few users create their own dances and upload them, and a number have gone viral and even helped creators get attention from famous artists.
This may seem like a fantastic thing for creators who want to get their work out there and make a name for themselves. Unfortunately, those getting the credit for new dances are not always the original creators — TikTokers frequently make their own videos copying others’ dances, and sometimes it is those second, third, or fourth iterations that end up going viral and reaping the benefits.
One of the most famous cases is that of 14-year-old Jalaiah Harmon. In January of 2020, she created what went on to become one of the most successful dances on TikTok.
However, almost no one knew her name until The New York Times wrote about her a month later — because it was not her video that went viral. It was that of another TikTok user who had copied her dance.
Unfortunate? Absolutely. Did it violate Harmon’s dance copyright, though? That answer is a bit more complicated.
The Confusing World of Dance Copyright
The first US copyright laws were adopted in the late 1700s. However, they only protected writers.
It was not until the 20th century that people even began to talk about the possibility of copyrighting choreography, and early cases arguing for this protection were failures. Copyright laws were finally updated in 1976 to include choreographic works, but there is still a lot of gray area where dance copyright is concerned.
General copyright laws from Congress set down four guidelines to use when deciding if a work should be granted copyright protection:
- Idea versus expression
In terms of choreography, copyright only protects the “expression” — not the “idea.” In other words, you can receive copyright protection for the recorded expression of your idea, but not the idea itself.
Again, this seems good, but that gray area is still there. Some argue that performing a creator’s choreography with new performers, a new setting, and for a new audience unfamiliar with the work makes it a new expression by transforming the meaning of the work.
Then there is the fact that copyright was created to promote the progress of art. Many artists, scholars, and legal professionals have argued that copying dances is what enables the field to change and evolve and that is something that should be protected as well.
How Does All of This Apply to TikTok Dance Creators?
One thing cannot be argued: when someone posts a dance video online, it is — by definition — granted copyright protection. Others should then not be able to use a dancer or choreographer’s work without their permission.
The key word there, however, is “should.” The reality of how TikTok works is quite different.
First, it can be incredibly difficult to know who actually originated a dance because posts on TikTok do not come with a timestamp. In other words, proving who posted a dance first is complicated. Second, there is all of that gray area that encompasses fair use, what makes something a new expression, and so on.
One thing is for certain. If you are going to post choreographic works on TikTok, you need to consider risk versus reward and be aware of all of the potential outcomes. Perhaps some day the platform will change to offer greater protection to creators, but right now it’s a bit like the Wild West — you may find success and fortune… or you might have others steal your dance expression.Share