By: Maryclaire M. Farrington
Credit or copyright? That is the question. On September 25, 2019, fourteen-year-old Jalaiah Harmon created a short, twenty-second dance, dubbed “the Renegade,” and posted it on Instagram.[1] In the weeks after, the video racked up about 13,000 views, inspiring other Instagrammers to recreate the dance and post it themselves.[2] By October, the dance had migrated to TikTok, and Jalaiah was lost in the endless echoes of “the Renegade.”[3] Jalaiah was not credited once.[4]
However, Jalaiah did not seek legal action, and did not attempt to copyright her dance,[5] she simply wanted credit.[6] But where is the line between copyright and credit, and must you have one to perpetuate the other?
The Renegade credit-or-copyright debacle is reminiscent of the 2018 Fortnite lawsuits.[7] In these lawsuits, a handful of basketball players, pop-culture icons, and even Carlton from the Fresh Prince of Bel-Air attempted to take on Epic Games for their Fortnite “emotes,” alleging copyright infringement and violation of the right of publicity.[8]
The United States District Court for the Central District of California cut Carlton at his knees when the court dismissed his suit, holding: “No one can own a dance step.”[9] The court went on to explain that “[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”[10]
Copyright does not extend to “short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”[11] The reasoning behind such stingy protection is Congress’ unwavering commitment to “progress.”[12] Copyright law walks the line between “providing protection to incentivize authors to create new works and allowing leeway so that new works can be created without being unduly strangled by the rights of preexisting works.”[13] Thus, Carlton’s swinging arms aren’t copyrightable, and neither is your favorite athlete’s end-zone jig.[14]
But where is the line between “individual dance steps” and “choreographic routines?”[15] The United States Copyright Office provides some clarity: “[c]horeography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”[16] Common elements of copyrightable choreography include:
- Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage
- A series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole
- A story, theme, or abstract composition conveyed through movement
- A presentation before an audience
- A performance by skilled individuals
- Musical or textual accompaniment[17]
Analyzing Jalaiah’s Renegade under these factors, it seems as though it might be copyrightable. The hurdles don’t stop there, though. Though the filing costs $45 for a single author or $65 for all other filings,[18] “[p]roviding the requisite material for an ironclad copyright application can also be costly.”[19] For example, a single Labanotation score,[20] which is a “codified dance notation” similar to sheet music, might cost an individual $5,000.[21] This may explain why, out of the 500,000 applications the Copyright Office receives each year, typically less than 20 are “choreographic works.”[22] Furthermore, the “world of professional dance is a small one built largely on reputation—so, historically, choreographers haven’t been tempted to outright copy each other’s work. . . . .[23]”
So, what does this mean for the amateur dancers of TikTok? “To be robbed of credit on TikTok is to be robbed of real opportunities. In 2020, virality means income. . . . .”[24] Should growing artists like Jalaiah be forced to invest in the copyright process to reap the benefits of their creativity? As is seemingly the answer with anything internet-related: maybe, maybe not. Whether it be social pressures of bourgeoning[25] and veteran[26] creators alike calling out copiers and demanding credit, or the strengthening legal argument some of these creators have,[27] some big names have begun to tip their hat to the original creators.[28] Perhaps we can trust credit will be given where credit is due, or perhaps the Copyright Office is about to get a lot busier with #TikTokApplications.
[1] Jalaiah S. Harmon (@jalaiah), Instagram (Sept. 25, 2019), https://www.instagram.com/p/B22za3xD1Fh/?utm_source=ig_embed&utm_campaign=embed_video_watch_again.
[2] Taylor Lorenz, The Original Renegade, N.Y. Times (Feb. 13, 2020), https://www.nytimes.com/2020/02/13/style/the-original-renegade.html.
[3] Id.
[4] Id.
[5] See generally id. (discussing that Jalaiah only wants to receive credit for her dance).
[6] Id.; see also J. Clara Chan, Tik Tok Star Jalaiah Harmon is More Than Just the Renegade Dance Creator in New Docuseries, Hollywood Rep. (Oct. 20, 2021), https://www.hollywoodreporter.com/business/digital/tiktok-star-jalaiah-harmon-renegade-docuseries-1235030529/.
[7] See, e.g., Nick Statt, Fornite Keeps Stealing Dances – And No One Knows if it’s Illegal, Verge (Dec. 20, 2018, 8:55 AM), https://www.theverge.com/2018/12/20/18149869/fortnite-dance-emote-lawsuit-milly-rock-floss-carlton (discussing similar occurrences including Russell Horning’s “floss dance” and Alfonso Ribeiro’s “The Carlton”).
[8] Id.; Chandler Martin, Whose Dance is it Anyway?: Carving Out Protection for Short Dances in the Fast Paced Digital Era, 98 N.C. L. Rev. 1001, 1002 (2020).
[9] Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss for Failure to State a Claim and Special Mot. to Strike (Anti-Slapp) Pl.’s Second Am. Complaint, Ferguson v. Epic Games, No. 2:18-cv-10110-CJC(RAOx), 2019 WL 578214 (C.D. Cal. 2019).
[10] Id.
[11] Id.
[12] Martin, supra note 8, at 1016 (“The Copyright Office’s interpretation of ‘simple routines’ and ‘short dance moves’ falls in line with how courts have previously interpreted building blocks in order to protect the broader copyright goal of promoting the progress of science and the useful arts . . . Such a right would not promote progress but instead inhibit it by depriving other creators of useful tools.”).
[13] Id. at 1015.
[14] Epic Games, supra note 9; Diane Faulkner, How to Copyright a Dance, LegalZoom, https://www.legalzoom.com/articles/how-to-copyright-a-dance (last updated July 16, 2021); Adi Robertson, Most of the Fortnite Dance Lawsuits are on Pause, Verge (Mar. 9, 2019, 12:23 PM), https://www.theverge.com/2019/3/9/18257385/epic-fortnite-lawsuit-ribeiro-2milly-dance-emote-lawsuits-withdrawn-pause-registration.
[15] Robertson, supra note 15 (“According to US copyright law, individual dance steps can’t be protected, but choreographic routines can—and there’s not much case law establishing a clear boundary between the two.”).
[16] U.S. Copyright Off., Circular 52: Copyright Registration of Choreography and Pantomime, at 1 (2021) https://www.copyright.gov/circs/circ52.pdf.
[17] Id.
[18] Fees, Copyright.gov, https://www.copyright.gov/about/fees.html (last visited Oct. 25, 2021) (choose “Registration”).
[19] Rebecca Milzoff, Inside ‘Single Ladies’ Choreographer JaQuel Knight’s Quest to Copyright His Dances, Billboard (Nov. 5, 2020), https://www.billboard.com/articles/business/9477613/jaquel-knight-beyonce-megan-thee-stallion-billboard-cover-story-interview-2020.
[20] Id.
[21] Milzoff, supra note 20.
[22] Id.
[23] Id.
[24] Lorenz, supra note 2.
[25] See, e.g., Tanya Chen (@tanyachen), Twitter (Mar. 28, 2021, 11:17 AM), https://twitter.com/tanyachen/status/1376191660623863812 (representing an example of a new and flourishing creator).
[26] See, e.g., Chancelor Johnathan Bennett (@chancetherapper), Twitter (July 13, 2018, 12:23 PM), https://twitter.com/chancetherapper/status/1017806749028573184 (representing an example of a seasoned creator).
[27] Paige Skinner, The TikToker Who Created The Viral “Savage” Dance Is Copyrighting The Moves, BuzzFeed News (Aug. 2, 2021, 3:19 PM), https://www.buzzfeednews.com/article/paigeskinner/savage-dance-copyrighted.
[28] Fortnite (@FortniteGame), Twitter (July 17, 2020, 8:00 PM), https://twitter.com/FortniteGame/status/1284276702131089408?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1284276702131089408%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.theverge.com%2F2020%2F7%2F17%2F21329157%2Ffortnite-renegade-dance-emote-jalaiah-harmon-for-sale-now.
