IS A TIKTOK DANCE ELIGIBLE FOR COPYRIGHT PROTECTION?

When I was recently asked whether someone could procure copyright protection for a TikTok dance, it got me thinking and so I decided to write this article on what I found based on my research.

Under US Copyright Law, a dance created by a choreographer or dancer is considered a creative work that can be granted copyright protection if: (i) it is an original work; (ii) it is a coherent whole (i.e., not just individual movements); and (iii) if it is fixed in a tangible medium (e.g., written illustration of the dance steps and movements or a video recording of the dance).

When someone creates a choreographed dance on a platform such as TikTok, that creation just might be eligible for copyright protection. However, simple dance routines - like an end zone celebratory dance or a series of yoga positions - have been deemed not protectable under copyright law. Basic dance moves or simple routines cannot be copyrighted separately, but a creator can copyright a dance as long as it is an original work which consists of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. All of the dance moves which constitute the choreographic work must be described with enough detail so that the work can be consistently performed. Most protectable choreographic works are usually those which are intended to be executed by skilled performers in front of an audience, such as a ballet or a modern dance routine.

In most cases that TikTok dance probably falls into the non-protectable category, unless  there is a sufficient combination of body movement, spatial movements and coordination with musical accompaniment such that the social media dance would be protectable. Protection is more likely if the performance is by a skilled dancer, is for the entertainment of others (i.e., not for others to mimic for their own enjoyment) and involves a discernable storyline or theme.

Choreographic works are afforded the same exclusive rights as any other copyrighted work so, once protected, it would be copyright infringement and the basis for legal action if someone without legal authorization publicly performs the choreograph work or adapts, distributes or reproduces the work. When a dance is deemed copyrightable then copyright accrues from the time it is fixed in a tangible medium or expression (written or recorded) and lasts for the life of the author plus 70 years. Registration is not required for protection, but registering early grants additional protections and is required before the author can commence legal action in court. If a video was posted online that you believe infringes on your copyright, your first step should be to request that the offending video be removed under the Digital Millennium Copyright Act.  However, the digital service provider can restore the material if the alleged infringer sends a counter-notice explaining why the material is non-infringing – which then leaves the copyright claimant for the choreographic work with no alternative but to file a lawsuit against the alleged infringer as the  last  resort to protect the copyright.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a teenage recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

The ABCs of NFTs (Understanding "Non-Fungible Tokens")

NFTs are suddenly headline news! Artists and musicians are using NFTs as a new way to release their products into the marketplace. NPR reports that the artist Grimes recently sold several NFTs for over $5 million and an NFT video clip of LeBron James making a historic dunk for the LA Lakers earned more than $200,000. Rolling Stone reports that the rock band Kings of Leon is releasing its new album in the form of an NFT. At the auction house Christie's, bids on an NFT by the artist Beeple are already reaching into the millions. It appears that what started as an online hobby among a certain group of tech and finance geeks is now being catapulted into the mainstream.

The best way to try to understand an NFT is to break it down to its essentials. The term NFT stands for non-fungible token. It is "non-fungible" meaning you cannot exchange it for another item of equal value. The "token" refers to a unit of currency on the blockchain, which is how cryptocurrency like Bitcoin is bought and sold. In other words, unlike monetary currency or other items which you can exchange, swap or trade, an NFT is unique and one of a kind.

However, even if you think you can understand how to define an NFT, understanding the valuation of an NFT can be even more evasive and nebulous. To wit, an NFT is a type of cryptocurrency that, instead of holding money, can hold assets such as art, tickets and music. NFTs operate on a blockchain which is a publicly accessible and transparent network. In other words, anyone can see the details of any NFT transaction. Each computer involved in the transaction becomes a part of the network, which keeps updating and cannot be hacked due to its inherent nature as a multi-part system. The bottom line is that an NFT, by its nature, has a value that is subjective and fluctuates much like a share of stock on Wall Street.

Therefore, when you purchase an NFT you are essentially purchasing a kind of bar code, a form of certificate of authenticity that serves as proof that a certain version of something unique belongs to you. What you purchase is a unique code that manifests as art or music, but in a different format. However, when you buy an NFT in most cases you are not getting the copyright or the trademark to the item, you simply own a piece of code in a blockchain that the marketplace deems to be a valuable item.

Not to over-simplify, but it might help to think of procuring an NFT as somewhat akin to acquiring a collectible. However, not all NFTs are originals, many are the digital equivalent of a reprint. In the case of an NFT, however, even the reprint has what is essentially a unique barcode or token on the blockchain. Keep in mind, the blockchain is a type of decentralized record keeping so that, instead of one institution like a bank having a ledger of all transactions, the blockchain uses a vast network of computers that all hold each other accountable on a shared public record. That makes it hard to remove an NFT from the internet entirely, and it also means that there is a way to trace an NFTs origin and transaction history - reinforcing the uniqueness and value of a given NFT.

With millions of dollars pouring into NFT transactions, many enthusiasts believe NFTs will soon expand beyond trading art, memes, music and video clips. There is an expectation that NFTs could be used as collateral for loans in the not too distant future. Silicon Valley investors, of course, believe the NFT possibilities are limitless. Then again, there is always the risk that this tech frenzy is just a passing fad or another speculative bubble. Although many NFT backers believe the system's built-in scarcity will keep values up, that is only true as long as the surge of interest persists. If you bid on and pay for an NFT but enthusiasm then plummets, so will the value.

It seems that every day some newfangled invention arrives to bedazzle us, but whether it is the next big thing, an iPhone-like quantum leap forward, or just another snake oil salesman's charade remains to be seen. Buyer beware. As for me, although I might dabble a bit in cryptocurrency investment, it is probably best to watch how NFTs perform in the marketplace until the dust settles. In the meantime, I will just enjoy the artwork that hangs on my wall and vibe to the music I play on my sound systems - I understand how to measure the value of that experience.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

WHAT IS A MUSIC PUBLISHING DEAL? & DO I REALLY NEED ONE?!

The term "publishing", most simply, concerns the business of copyrights. As a songwriter you own 100% of your song copyright and all the related publishing rights until you sign those rights away. Under the law, copyright (literally, the right to make and sell copies) automatically vests in the creator the moment the expression of an idea is "fixed in a tangible medium." (In other words, the moment you write it down or record it on tape.) With respect to music, there are really two copyrights: a copyright in the musical composition owned by the songwriter and a sound recording copyright in the sound of the recording owned by the recording artist (but usually transferred to the record company when a record deal is signed).

You own the copyright in your work the moment you write it down or record it, and you can only transfer those rights by signing a written agreement to transfer them. Therefore, you must be wary of any agreement you are asked to sign. Although it is not necessary, it is advisable to place a notice of your copyright on all copies of the work. This consists of the symbol "c" or the word "copyright", the author's name, and the year in which the work was created, for example: " (c) John Doe 1993."

The filing of a copyright registration form in Washington D.C. gives you additional protection in so far is it establishes a record of the existence of such copyright and gives you the presumption of validity in the event of a lawsuit. Registration is also required for a lawsuit to be commenced in Federal court and, under Federal law, allows an award of attorney’s fees to the prevailing party. The easiest way to register your copyright is directly online at www.copyright.gov

As defined by the copyright law, the word "publish" most simply means "distribution of copies of a work to the public by sale or other transfer of ownership, or by rental lease, or lending". As a practical matter, music publishing consists primarily of all administrative duties, exploitation of copyrights, and collection of monies generated from the exploitation of those copyrights. If you make a publishing deal and a publisher takes on these responsibilities then it "administers" the compositions. Administrative duties range from filing all the necessary registrations (i.e., copyright forms) to answering inquiries regarding the musical compositions.

One of the most important functions of music publishers is exploitation of a composition or "plugging" a song. Exploitation simply means seeking out different uses for musical compositions. Music publishers have professional quality demos prepared and send them to artists and producers to try to secure recordings. They also use these tapes to secure usage in the television, film and advertising industries.

Equally important as exploitation is the collection of monies earned by these musical usages. There are two primary sources of income for a music publisher: earnings that come from record sales (i.e., mechanical royalties) and revenues that come from broadcast performances (i.e., performance royalties). Mechanical royalties are collected directly from the record companies and paid to the publisher. Performance royalties are collected by performing rights organizations - ASCAP, BMI, and SESAC - and then distributed proportionally to the publisher and to the songwriter. In addition to plugging and administrative functions, it is also important to know that there is a creative side to music publishing. Since producing hit songs is in the best interest of both the writer and the publisher, good music publishers have whole departments devoted to helping writers growing and develop. The creative staff finds and signs new writers, works with them to improve their songs, pairs them up creatively with co-writers and hopes the outcome will be hit records.

If you decide to do a publishing deal then the main issue for negotiation is going to be the language pertaining to the calculation and division of the monies. In the old days, most deals were 50/50 because there was a concept that the "writer's share" was 50% and the "publisher's share" was 50%. This, of course, was an invention of the publishers. Legally, these terms have no such inherent meaning but their calculation is defined in each individual agreement. Most modern publishing deals, however, are referred to as "co-publishing" deals and the monies are usually calculated at around 75/25 meaning the writer gets 100% of the 50% writer's share and 50% of the publisher's 50% share for a total of 75%. It is best for the writer to insist that all calculations be made "at source" so that there are not too many charges and fees deducted off the top before the 75% calculation is made. fees additional. Keep in mind, however, that the advance paid to the writer by the publisher is later recouped by the publisher out of the writer's share of income from the song. So, the net business effect is that the publisher pays the writer with the writer's own money to buy a share of the copyright (and the right to future income) from the writer.

Although a writer can be his own publisher and retain 100% of the money, the larger publishers in the music business usually pay substantial advance payments to writers in order to induce them to sign a portion of their publishing rights to the publisher - and this can be a good thing for the writer. Although a deal for a single song may be done with little or no advance payment (provided there is a reversion of the song to the writer if no recording is released within a year or two), there should be a substantial advance paid ($5,000-$25,000+) to a writer for any publishing deal with a longer term (e.g., 3-5 years).

Publishing deals have to do with more than just the money though. Since every music publisher is different, it is important for the songwriter to assess both the business and the creative sides of a music publisher before signing a deal.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a songwriter and recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com