he hashtag “BlackTikTokStrike” has been viewed more than six million times on TikTok, a free video-sharing-focused social networking service. TikTok has created superstars like Addison Rae and Charli D’Amelio, but these stars have mostly been white women and girls, and they have often gained notoriety and received millions of views by parroting dance routines primarily created by Black creators and other creators of color.
In March, TikTok star turned media personality Addison Rae made an appearance on The Tonight Show Starring Jimmy Fallon teaching the late-night host eight of the most trending or popular dances on the social media platform. Fallon and Rae subsequently received major backlash for initially failing to credit the originators of each of the eight dances.
Jalaiah Harmon, the creator of the “Renegade” dance, Keara Wilson, creator of the dance to Megan Thee Stallion’s “Savage Remix”, and Dorian Scott, creator of the “Corvette Corvette” dance, are just a few Black creators who did not initially receive credit for their viral dance routines. The mishap on The Tonight Show serves as just one of many examples where Black creators and other creators of color have not received proper attribution in the marketplace for their creativity.
Noticing this trend, a growing number of Black TikTok users, rather than choreographing and posting viral-worthy dance routines, are instead posting videos bringing awareness to the strike. Dancer Erick Louis, one of the first to announce the boycott, stated in his post: “This app would be nothing without [Black] people.”
Against the backdrop of the strike, what can Black creators and other creators of color do to protect their choreographic works, protect their rights, and monetize their creativity? Part of the answer may lie in gaining a solid understanding of United States copyright law and an understanding of its importance and relevance to digital media and the culture of platforms like TikTok.
How TikTok Dance Routines and U.S. Copyright Law Intersect
If a TikTok user creates a viral-worthy dance routine to one of the most popular songs in the country, and then proceeds to post a tutorial video on TikTok, what are the creator’s rights and how can she/they/he protect them? It is important to first address: what is a copyright?
A copyright is defined as a form of intellectual property that protects original works of authorship as soon as the author fixes the work in a tangible medium of expression. Further, section 102(a)(4) of the U.S. Copyright Act of 1976 provides for copyright protection in “…choreographic works.”
In other words, a dance routine can become copyrightable. For example, an original dance routine is considered an “original work of authorship”, and it becomes copyrightable once the creator posts or ‘fixes’ the dance routine on a platform or “tangible medium of expression”, like in the form of a TikTok video.
Once a creator posts their dance routine on TikTok (or on any other platform), they are the author and the owner of such work, and therefore, are immediately afforded exclusive rights under U.S. copyright law. Some of these rights include, but are not limited to:
- Performing and displaying the dance routine publicly.
- Preparing derivative works (other creative works based on the dance routine).
- Authorizing others to exercise these exclusive rights, subject to certain statutory limitations.
Although the creator is afforded the above-mentioned rights immediately upon posting their dance tutorial on social media, registering the actual dance routine with the U.S. Copyright Office will enhance the creator’s protections. Thus, while copyright registration is not required, it does provide creators with enhanced rights and benefits. Some of these enhanced rights and benefits include:
- Presumption of ownership of the dance routine.
- Public record of ownership of the dance routine.
- Ability to enforce copyrights by filing a federal lawsuit for copyright infringement of the dance routine.
- Eligibility for statutory damages (monetary damages set by the law that do not have to be specifically proved), attorney fees, and costs of suit.
In summary, copyright is less about attribution and credit and more about monetary incentives and being compensated for your work while fostering creativity. Black TikTok creators and other creators of color may seek legal protection by immediately registering their choreographic works with the U.S. Copyright Office. One caveat: the U.S. Supreme Court ruled in Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S. Ct. 881 (2019) that copyright owners must wait for the U.S. Copyright Office to approve their application before filing a lawsuit for infringement.
Critical Takeaways for TikTok and Other Dance Content Creators:
- Continue cultivating and building your choreographic skills!
- Consult with an attorney for advice on whether your choreographic work(s) qualify for copyright protection.
- If so, consult with an attorney to register your choreographic work(s) with the U.S. Copyright Office.
- Consider forming a company such as an LLC to treat your hard work like a business – and get paid!
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Filed in: Copyright, Entertainment, Legal Blog, Social Media
July 21, 2021