Can You Copyright Choreography? Inside the Murky Legal Landscape of TikTok Dances

What are the legal ramifications if someone steals your dance moves? Can you sue them? This issue has become increasingly common with the rise of TikTok, where dance moves are frequently copied, shared, and also emerging in other social media and video games. 

‘Hey, That’s My Move!’

Ruka White, who teaches the Iconic Dance and Urban Movement course at Berklee Online says he never imagined he’d see somebody steal his moves—until one of his students used his choreography in an audition that he was judging for a performing arts high school, without his knowledge. 

“She starts moving and I’m like, ‘Oh, this is my dance that I choreographed that I forgot I choreographed in her class,’” says White.  

The high school dancer likely didn’t know that it was a faux pas to use someone else’s choreography without permission. In this instance, White found it flattering that the student liked his choreography so much that she decided to use it for her audition, but this is not always the case. Using someone else’s choreography without giving credit or getting permission is discouraged in the arts community and often has social repercussions; however, it falls into murky waters legally. In this article, we’ll talk with three experts who teach at Berklee in the fields of dance and music law to help parse out the intricacies. 

“From a technical standpoint, yes, you can copyright choreography,” says White, “but I think the amount of shame and the amount of ridicule that could come as a result of doing something like that is enough to not do it.”

How Dance Copyright Differs from Music Copyright

For musicians, copyrights are more straightforward. It’s understood that attaining a copyright is extremely important for the protection of tangible ideas of original work such as lyrics as well as the melodic and harmonic compositions inside songs. According to the Copyright Act established in 1976, choreographies are one of the eight types of copyrightable works, however, the concept of copyrights in relation to dance is trickier than in music. 

“The Copyright Act allows for the protection of choreography, but it doesn’t cover all types of dance,” says White. “The Macarena, the Charleston, the Electric Slide, and traditional folk dances are generally not protected since they are often considered public domain or too basic to qualify as original.”

The next thing you might be asking yourself is “what constitutes choreography?” According to White, choreography can be described as a “dance that must be recorded or notated in some way, and must exhibit a degree of creativity that goes beyond simple movement.” In this instance, it is safe to infer that choreography is a specific combination of isolated movements where dancers generally use their creativity to build off of already existing movements to create something new. What is not copyrightable would be the isolated movements by themselves, such as everyday body movements, ballet poses, and yoga positions.

Copyrighting a choreography can be uncertain because iconic dance moves have been used as inspiration for the creation of new choreographies. 

Iconic Dance Moves and the Influence of Borrowing

“Michael Jackson borrowed a lot,” says White, “He was an iconic artist, but even he borrowed and copied extreme examples of a lot of the performances of Bob Fosse.”

Michael Jackson’s famous moonwalk is an example of this instance as it was actually claimed to be created by Jeffery Daniels, who then taught it to Michael Jackson. In reality, the origins of the moonwalk and Michael Jackson’s other choreographies come from past generations. 

Just like any other original choreography, transforming dance copyrights is difficult to determine. White emphasizes that “sweeping infringement often requires showing that accused work copied substantial, recognizable parts of the original choreography, which can be subjective.” 

There have not been many cases regarding dance copyright infringement because most of the cases do not proceed in court due to the lack of substantial evidence. This was almost the case with Kyle Hanagami, a choreographer who created a dance for the song “How Long” by Charlie Puth, which was later used by Epic Games, owners of the video game Fortnite. 

Hannagami’s dance moves were used as “emotes” that users could purchase inside the video game in which case, Hannagami was not credited or financially compensated for his original work. 

Valerie Lovely, who authored the Berklee Online course Music Business Law for Artists, explains that since Hannagami had registered his choreography with the Copyrights Office, he was able to sue Epic Games. But that doesn’t mean he was successful right away. 

“The lower court looked at every single dance move by itself and determined that each move wasn’t original enough to qualify for copyright, so they ruled against him,” says Lovely, “He appealed and then the appeals to court got it right because it’s not supposed to be looking at the individual dance moves; it’s supposed to be looking at how those dance moves are put together to create the choreography, so he won his case on appeal.”  

TikTok and the Challenges of Dance Copyright in the Digital Age

With the rise of TikTok—where anyone can create dances that can easily become famous trends—the courts will likely see more and more choreography copyright cases.  

“Certainly there are going to be scenarios where people might be stealing your dance and you don’t know it,” says Allen Bargfrede, who teaches Copyright Law at Berklee Online. “I think one of the challenges in social media is that there are just so many posts. It’s really hard for you to police the internet and try to find the people that are stealing your copyright.”  

When it comes to social media platforms, the US adopted the Digital Millennium Copyright Act (DMCA), which specifically addresses copyrights inside the internet. “If you create an original choreography and post it on TikTok, it’s automatically copyrighted to you as soon as it’s fixed in a tangible form,” says White. Therefore, when posting on social media, all users have the right to their work and are able to file a DMCA takedown notice, which allows infringing videos to be taken down. 

Lovely highlights the fact that dances have considerably less protections than sound recordings.

“With music, you’ve got record labels that are monitoring and coming forward about sound recordings that are being used without permission,” says Lovely. “Choreographers don’t really have that system in place to advocate their rights, so people violate these rights and usually there aren’t many consequences for it.” 

Since it is almost impossible to know whether the dance will blow up on TikTok and there is no proper compensation, dancers do not often feel the need to register their choreographies, which was the case with popular influencers in 2020. 

Will the Real Renegade Creator Please Stand Up … And Dance?

In 2019 Charli D’Amelio became TikTok famous by dancing to different trends such as the Renegade, which was created by Jalaiah Harmon—a Black teenager from Atlanta. In this case, D’Amelio received more attention, did not credit Harmon, and eventually TikTok fame led to something more when she signed with a talent agent, and got a spot in a Super Bowl commercial.

When an article in the New York Times identified Harmon as the originator of the Renegade, the online backlash against D’Amelio was swift, and from that point forward she vowed to consistently acknowledge the creators of the dances she performed.

D’Amelio later recorded a TikTok where she and Addison Rae (who you’ll read about in a moment if you’re not already familiar!) dance behind Harmon, showing appropriate deference to the original Renegade, not only giving Harmon credit for the dance, but also helping promote Harmon’s TikTok account. Though D’Amelio did the right thing by crediting Harmon and boosting her presence on TikTok, it’s hard to ignore the imbalance—D’Amelio boasts over 155 million TikTok followers, while Harmon has only a fraction of that at 3.3 million.

Similarly, Addison Rae was invited to perform TikTok trends on Jimmy Fallon’s Tonight Show without crediting the choreographers or the original dancers, which developed into a similar debate regarding cultural appropriation, since Black creators were behind the choreography of most of these TikTok dances. 

Seeking to rectify the situation, Fallon invited the creators of TikTok famous dance trends on his show to make amends for the Addison Rae segment.

Despite the severe accusations, no legal charges were filed in either the Renegade situation or the Fallon situation. All parties who were criticized for co-opting the choreographies preemptively took the high road before any courts intervened and invited the originators of the dances into their spotlights. Yet an unfairness remains: choreographers might receive proper credit for their work, but never the same recognition as those who performed their dances. 

When to Register Your Moves

“As a lawyer, I advise my clients to file their copyrights,” says Lovely, “because if you have the filing, you have the ability to sue or write a strongly-worded letter saying, ‘I own this copyright,’ which they can look up to confirm.” 

According to Bargfrede, one should register their work in the copyright office when it has the potential to become a monetizable asset. 

“When you start to think, ‘That is gonna have legs,’” he says.  “There are some songwriters who write hundreds of songs a year, and go through the effort and pay the money to register every one of them when, and you know, they might only get streamed twice.” 

Inside the music industry, the Copyright Act not only credits artists and musicians for sound recordings and compositions, but also enables artists to receive financial compensation for their hard work.

Unfortunately, the system does not work the same when it comes to dance copyrights. Copyrighting a dance gives you the rights to claim it and ask for the takedown of any tangible display of the choreography. However, many times creators are unsure when it is truly necessary (or financially worth it) to take this step since artists never know if their content will become as famous.