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
