By: Sofia Ellington

Since 2020, viral TikTok dances have helped promote some of the biggest hit songs in the music industry. Artists and record labels have made millions on increased streams of those hit songs. TikTok itself is valued at around 65 billion dollars. However, most dance creators on the platform retain no rights in their choreography, meaning that they do not profit directly off the licensing or use of their dances that help make both the music and TikTok popular. Black, Indigenous, People of Color (BIPOC) artists are behind some of the most popular viral dances and are particularly affected by social media platforms that make it difficult to receive recognition and publicity for their work. However, the crux in extending protection to TikTok dances through a Western Intellectual Property (IP) regime is that videos are meant to go viral through large scale replicating and copying, not just through users merely viewing them. Registering those dances could restrict and change the nature of interactive sharing on the platform, which suggests that copyright may not currently be suited to the demands of modern social media platforms. Artists will want to look to alternative regimes, such as Indigenous IP, as inspiration for how to protect their dances while leaving non-commercial sharing unrestricted.

TikTok has an Accreditation Problem 

BIPOC artists are behind some of the most popular viral dances to songs such as “Savage” and “WAP,” but TikTok’s algorithm, which shows undated videos in an endless stream detached from chronology, makes it almost impossible to uncover the original choreographer. Due to this accreditation difficulty, many dances go viral once a famous, oftentimes White, creator on the app posts a video of themselves doing the dance. The publicity for the dance then focuses on the already famous creator instead of the choreographer who originally created the dance. 

It was not until months after rapper K Camp song’s “Lottery” inspired the viral dance “Renegade, ” that the original creator, 14 year-old Jalaiah Harmon, was correctly credited in an article by The New York Times. Originally, the dance was accredited to two White TikTok creators, Addison Rae and Charlie D’Amelio. Before the New York Times Article was published, Rae was invited on The Tonight Show to perform some of the dances that made her famous, including “Renegade.” She failed to shout out any of the original creators of the dances, leading to backlash. The hashtag “BlackTikTokStrike” trended in 2021 to draw attention to the centrality of Black artists to the platform as well as rampant appropriation and lack of credit. 

The Hegelian personhood theory of property ownership posits that our autonomy and personality is intrinsically tied to what we own and the outputs of our creative expression. Lack of protection for these BIPOC artists, whose work is appropriated and uncredited on TikTok, is harmful, not just to their bottom line, but to the sense of control over their autonomy and personhood. Even though the unfairness of her uncredited dance was not lost on Harmon, she told the New York Times that she has continued to choreograph because ultimately, “it makes me happy to dance.” 

Can Copyright Protect TikTok Dances?

Whether Copyright can protect viral dances is more complicated than a simple yes or no. Copyright protection is available for original works of authorship that are fixed in a tangible medium and fall into a list of non-exhaustive categories in the Copyright Act of 1976.

The fourth category includes choreographic works, which are defined by the Copyright Office as, “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” Most TikTok dances easily meet this definition, but copyright requires that choreographic works amount to more than social dance steps or simple routines, an additional hurdle for TikTok dances to clear. 

The prohibition on copyrighting social dances or simple routines is well settled and informed by the utilitarian goal of copyright in the Copyright Clause of the U.S. Constitution, which states that Congress has the power to secure copyrights “to promote the progress of science and the useful arts.” Copyright tries to balance creating incentives for creation without preventing the free flow of ideas. It would be antithetical to the goals of copyright to allow one person to lock up simple steps or the building blocks of dance and prevent future artists from using those ideas to progress expression of the art form. 

While most complex TikTok dances will rise above the level of a mere social dance and be eligible for protection by meeting the statutory elements of choreography, found in the United States Copyright Office’s Circular 52, copyright must balance incentivizing new work without chilling the ability of other creators to build upon that work if TikTok is to remain an interactive platform. TikTok relies not just on viewership, unlike past song and dance media platforms such as MTV, but on participation in the content which presupposes copying and replication. This built-in assumption is obvious through the apps tooling which permits a user to “Duet” or “Stitch” other creators’ videos to their own. 

Shayné Abram and Zhané Miller went viral in 2020 for their choreography to the Remix of Megan Thee Stallion’s song “Savage,” and are in the process of applying for copyright protection for their moves. Their concern is protecting themselves against commercial exploitation, not dance challenges on TikTok. If protecting against the commercial use, and not the social use, of dances is the goal, alternative IP regimes may offer inspiration for a system of protection without the potential downside of chilling creative expression.  

Indigenous IP 

The 2004 broadcast of the Grammys featured a performance by OutKast’s Andre “3000” singing “Hey Ya!” Outcast was joined onstage by dancers wearing Indigenous “symbols usually reserved for ceremonial purposes, like feathers and war paint.” Additionally, the introduction to the performance appropriated a sacred Navajo/Diné  “Beauty Way” prayer which is used for sacred ceremonies and considered improper for use in entertainment. The incident left many questioning if federal laws could effectively prevent offensive appropriations of non-tangible sacred property. 

Congress has passed statutes such as The Native American Graves Protection Act and the Indian Arts and Crafts Act to protect Indigenous tangible cultural property. However, Western IP laws are often too narrow to protect intangible Indigenous property, such as song and dance. Instead, those forms of property are a continual collaboration and conversation in the community, not the work of a single author— one of many reasons that they are ineligible for copyright. 

Many Indigenous nations have utilized their sovereignty to create tribal laws that reflect a wider conception of property ownership that protects sharing sacred customs among the tribe while prohibiting improper and exploitative uses. While these laws are not binding on courts outside of the reservations’ jurisdictions, using tribal laws outside of the tribal context can influence courts to respect alternative means of recognizing property. A wider conception of property that is recognized in Indigenous IP could be an inspiration for how the current copyright system can evolve to protect against commercial appropriation while still allowing for the social and communal sharing of dance. 

Toward a Better Platform 

For creators on TikTok, there are huge monetary and personal incentives for receiving credit for choreography. An increasing desire to gain copyright over these dances is important for BIPOC creators in order to reap the economic benefits of their labor. However, fear of enforcement for copying and sharing these dances could lead to a chilling of expression on the platforms that made them popular. Creating a space for communal sharing and participation in the expression of these dances makes TikTok a powerful platform. Social media companies should feel incentivized to create a more rigorous system for accrediting and certifying original creators to prevent copyright enforcement mechanisms from dampening participation and engagement. There is value in looking outside of the traditional IP system, whether to Indigenous IP or to alternative licensing schemes, to work together to create platforms that encourage community sharing but prevent the appropriation and exploitation of individual users’ content.