If you create choreographed dances on platforms like TikTok, your creations may be eligible for copyright protection.
While basic dance moves or routines cannot be copyrighted, a dance is considered a creative work like a manuscript or a painting.
Michael Chiappetta, attorney and senior editor in the Intellectual Property & Technology Group at Thomson Reuters Practical Law, explains that you can copyright a dance as long as it's "an original work consisting of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole."
"These are critical requirements under copyright law," says Dmitry Lapin, an attorney with Danchuk Law LLC. "There is also a specific requirement that all of the movements or aspect of the choreography be described with enough detail so that the work could be consistently performed."
"Protectable choreographic works, however," according to Chiappetta, "are typically intended to be executed by skilled performers in front of an audience, such as a ballet or a modern dance routine."
Unprotectable dances, regardless of their level of creativity, are simple routines, such as:
- End zone celebratory dances
- Series of yoga positions
- Social dance steps, such as breakdances, line dances, or ballroom dances generally intended to be performed by others for their own enjoyment
"Most TikTok dances likely fall into the latter unprotectable category," Chiappetta says. "However, where there is a sufficient combination of body movement, spatial movements, and coordination with musical accompaniment, it is possible that a social media dance may be protectable."
Protection is more likely if the performance:
- Is by a skilled dancer
- Is for the entertainment of others, and not for others to mimic for their own enjoyment
- Involves a story or theme
What rights are protected?
Choreographic works are afforded the same exclusive rights as any other copyrighted work. Chiappetta says it would be copyright infringement and a basis for a legal claim if someone without legal authorization:
- Publicly performs the work
- Reproduces the work
- Distributes the work
- Adapts the work
When does choreography copyright begin?
If a dance is deemed copyrightable, then copyright comes at the time of recording and lasts throughout the author's lifetime plus 70 years.
"Similar to writing, copyright protection begins when a performance is fixed in a tangible medium of expression" like a video or dance script, says Joseph Mandour, an intellectual property attorney and managing partner of Mandour & Associates APC.
A TikTok video could suffice as long as the dance falls into a protectable category. Registration is not required for protection, "but registering early grants additional protections, including the right to file a lawsuit," Mandour says.
How to enforce a choreography copyright
If a video was posted online that you believe infringes on your copyright, you should request that the offending video be removed under the Digital Millennium Copyright Act.
"However, the provider must restore the material if the alleged infringer sends a counter-notice explaining why the material is non-infringing, unless the copyright owner files a lawsuit first," Chiappetta says. "Otherwise, you may file an infringement claim in a federal court based on the violation of any of its exclusive rights."
Chiappetta also notes that under the Copyright Alternative in Small-Claims Enforcement Act of 2020—signed into law at the end of 2020 as part of the Consolidated Appropriations Act of 2021—"the copyright office is also developing a streamlined small-claims system that will allow a copyright owner with only a pending application to bring a small claim seeking limited remedies, provided the infringer does not opt out."
One last move
In protecting your choreography copyright, don't forget to obtain permission to use the accompanying music. You must first secure permission from the owner of the music's copyright—both the musical composition and the recording. Otherwise, you might find yourself on the wrong end of a copyright complaint.
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