Washington Law Review

Article

Copyrighting TikTok Dances: Choreography in the Internet Age

October 01, 2021 | 96 Wash. L. Rev. 1225

Abstract: TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women of color) frequently do not receive credit, or the massive opportunities that come with such recognition. This Comment explores how intellectual property law may provide a framework to address this problem, while simultaneously acknowledging the troubled history between copyright and creators of color. It also situates the TikTok problem within a larger phenomenon: choreography is an increasingly important part of pop culture as video cements itself as the dominant communicative medium of the era. Accordingly, the challenges of asserting intellectual property rights over choreography (which have historically gone unsought and ignored) is a legal problem that will require renewed focus.

Part I of this Comment describes the global ascent of TikTok as a platform for sharing choreography, and how the app serves as a touchpoint for a bigger story of cultural appropriation in the United States. Part II discusses copyright law and choreography, focusing on the required features a piece of choreography must have to be entitled to copyright protection, and the increasing importance of copyright protection for choreography in the internet age. Part III addresses the recent litigation between a popular video game, Fortnite, and a cadre of celebrities who claim the game copied their “signature dance moves” without compensation. Specifically, this Part investigates how the outcomes of those cases inform analysis for legal protection of TikTok dances. Part IV argues that under the current copyright regime, many TikTok dances likely qualify for copyright protection. However, given the importance of widespread dissemination to the success of TikTok dances, copyright protection––which would inevitably have a chilling effect on a dance’s dissemination––may not pave the appropriate path forward. This Part also presents potential solutions. These potential solutions include licensing schemes, as well as extralegal fixes TikTok could employ to meet the dual goals of allowing dissemination while simultaneously protecting the attribution rights of choreographers.

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