Is that TikTok dance meme copyrighted? It’s complicated….

As someone who studies the intersection of copyright law and technology, I spend a lot of time thinking about the ways modern technology changes how we create, consume, share, and interact with copyrighted works and intellectual property laws. And these days, that means I spend more time than you might realize thinking about dancing video game characters and TikTok influencers.

Choreography and Copyright

Dance choreography has been protected by statutory copyright law since 1978, when the Copyright Act of 1976, our current copyright law, took effect. This statute established eight types of copyrightable works: literary works; dramatic works; pictorial, graphic, and sculptural works; motion pictures; sound recordings; architectural work; and pantomimes and choreographic works.  

However, while the statute is clear that choreographic works are copyrightable subject matter, it is not clear on what constitutes a choreographic work. Like most statutes, the copyright statute contains a definition section that defines terms as they appear within the rest of the statute. Unfortunately, copyright’s definition section, 17 USC 101, does not include an entry for choreographic works, so we have to look elsewhere for help.

When statutory language is unclear, we will often look to caselaw for guidance. Since the U.S. legal system derives from the common law tradition, judicial decisions can authoritatively interpret statutes, and we can use those interpretations to better understand what terms within statutes mean. So, when the Court of Appeals for the 9th Circuit held in 2015 in Bikrim’s Yoga v. Evolation Yoga that a series of yoga poses is not copyrightable, this tells us a bit about how the law applies to choreography -- yoga poses aren’t choreographic works because they serve functional purposes not aesthetic purposes, and copyright doesn’t usually extend to functional works. The same would apply to another series of functional movements, like a football play. That said, Bikrim’s Yoga notwithstanding, there have been very few copyright cases about dance choreography, and without much guidance it can be hard to determine how the law applies to these types of works.

It may seem like copyright protection is binary -- either something is copyrighted or it isn't. But the truth is a little more complicated than that, since all works consist of both copyrightable and uncopyrightable parts. In general, copyright protects authors’ original creative expressions, and not things like facts, ideas, or parts of the public domain that authors incorporated into their copyrighted works.  

To understand this better in the context of dance, think of something like ballet. Ballet contains a number of foot and arm positions that all dancers study. Choreographers put these positions together along with other moves to create their dance performances. While individual poses may not be protected by copyright, a performance as a whole can be. Additionally, ballet has existed for hundreds of years, and choreographers often build on past performances to create new ones. In copyright terms, the poses, arm positions, and old performances are the public domain building blocks of dance pieces; the original, creative expression is the way that a choreographer assembles everything, adding in their own contributions, ultimately creating something new.  

Can you Copyright “The Carlton”?

At this point, you may be saying to yourself, “Stephen this is all great, but what does this have to do with technology?” To answer that, let’s look at how dances have recently appeared in video games and on TikTok.  

In 2017, when Epic Games released the massive multiplayer online video game Fortnite, it quickly became one of the most popular games of all time. While Fortnite is free to play, players can customize their characters in several ways, including through buying “emotes.” Emotes are short dances that players can command their character to perform. Most, if not all, of these dances come from popular culture.  

The use of popular dances in video games is not new. World of Warcraft, for example, which has been around since 2004, has the “/dance” command since its beginning. This command causes characters to perform versions of famous dances like John Travolta’s disco moves from in Saturday Night Fever, Michael Jackson’s iconic spins and kicks from Billie Jean, and MC Hammer’s shuffle steps from U Can’t Touch This.  

Nevertheless, even though there may be a history of video games incorporating popular dances, some dance creators seem to be particularly unhappy with the inclusion of their dances in Fortnite. For example, in 2019, Alfonso Ribeiro sued Epic Games over the use of his dance, "The Carlton," in Fortnite. Ribeiro, who is now a co-host on Dancing with the Stars, is probably most famous for his role on The Fresh Prince of Bel-Air and for the dance that was named after his character, Carlton Banks. Fortnite unquestionably included "The Carlton" in the game, but Riberio eventually dropped his case after the Copyright Office refused to grant registration to his dance because it did not contain enough creative expression to justify registration. While copyright protection does not depend on registration, and only a court can declare a work uncopyrightable, this refusal indicated that Rubeiro did not have a strong case against the game publisher.  

Fortunately, a recent decision from the 9th Circuit involving another Fornite emote has provided some clarity on copyrightability of dance choreography. This case, Hanagami v. Epic Games, involved a performance by professional choreographer Kyle Hanagami that he published on YouTube on 2017. A few years later, in 2020, Epic Games added a short portion of this dance routine as an emote called “It’s Complicated” to Fortnite. Hanagami sued and initially lost in the district court. The Court of Appeals for the 9th Circuit reversed and remanded sending the case back to the lower court to consider more evidence about the similarity between Hanagami’s work and the Fortnite emote.

This decision from the 9th Circuit formally adopted relatively clear definitions for copyrightable “choreography” as distinguished from uncopyrightable “dance.” The court defined choreography as “the composition and arrangement of a series of dance movements and patterns organized into a coherent whole.” Dance, on the other hand, is “static and kinetic succession of bodily movement in certain rhythmic and spatial relationships.” The court also identified several elements that choreographic works typically should contain: “rhythmic movement in a defined space,” “compositional arrangement,” “musical or textual accompaniment,” “dramatic content,” “presentation before an audience,” and “execution by skilled performers.”

Interestingly, the 9th Circuit took this definition from the Compendium of U.S. Copyright Office Practices. The Compendium is the administrative manual that Copyright Office employees use for guidance on copyright law. While it is not authoritative -- like any secondary source, the Compendium is not binding law, even if it comes from a federal agency -- it can be quite helpful for researchers because it offers clear statements on many different issues that arise under copyright.

TikTok Dance – or TikTok Choreography?  

What does this decision mean for future choreography cases? While I can’t say for sure since the decision is so new, I will be watching to see what effect it has on TikTok dance memes.  

If you haven’t used TikTok, it is a social media platform that allows users to share short videos and features a powerful suggestion algorithm that is very good at connecting users to content that is relevant to them. Recording and sharing short dance routines has been one popular way to use TikTok, and some creators have questioned what rights they have when others appropriate and use their dances without their permission. Under Hanagami are these videos uncopyrightable “dances” or copyrightable “choreography”? A court decision either way could have a significant impact on how people create share their dances in the future.  

Meanwhile, I will have to keep watching TikTok to see what happens. At least, that will be my excuse.