If you create choreographic dance moves, do you own the exclusive copyright of them? This question is frequently asked for traditional dances, such as ballet choreography, as well as for modern dancing, notably, the dance moves on TikTok.
In short, if the dance moves are original works beyond basic social dancing, they are likely copyrightable. Let’s break it down.
The U.S. Copyright Act protects original works of authorship fixed in any tangible medium of expression, and a work is fixed in a tangible medium of expression when it's embodied in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
First key term – original works of authorship
What constitutes original work? The short answer is - any type of expression independently conceived by its creator can be reviewed as original. However, copyright law also recognizes compilation, meaning, the compilation itself can be copyrightable as original and independent work, while excluding the existing materials that are used as the parts of compilation. For dance moves, if the steps are simple and commonly used in social settings, they inherently lack the originality. But, if the steps are specifically crafted with some new moves to coordinate a song, likely they are copyrightable.
Second key term – fixed in a tangible medium
It is important that the original work is written down, filmed or in any other way fixed in a tangible medium. For example, if you tell an original story to others, although the story itself is original, it is not (yet) protected until it is written down or recorded via audio recording or other tangible forms. For ballet choreography, if the choreography only exists in the director’s and the dancers’ minds, it can hardly be protected by copyright laws. However, as soon as the choreography is recorded or written down, it becomes a copyrightable work.
While in the U.S. you don’t need to register a copyright to enjoy the basic protections, it would be practically difficult to enforce your rights without the registration. There are mainly two ways to enforce your rights – through a civil lawsuit or through a DMCA (The Digital Millennium Copyright Act) takedown. After 2019, you will need a copyright registration to be eligible of filing a copyright infringement lawsuit. There is no such requirement for a DMCA takedown – where you tell a platform to take down the infringing work. That being said, if the alleged infringing party disputes the takedown, you will also need to commence a lawsuit to complete the takedown, in which case, a copyright registration is required. There is also potentially a third venue to claim copyright infringement in the near future, which you can read about in my other article here.
Music License
Now you probably want to apply for a copyright registration for your choreography and viral dance moves. Can you file the application with a video recording? Yes, but you first need to clear the music used in the recording, since it is separate from your dance.
In a nutshell, you would need a proper permission to use the music so there is no risk of infringement. Then, you need to exclude the music in your registration (so that your exclusive right is over the dance itself but not the music).
There are different types of permissions for the background music. If you use music in the public domain, meaning, music created a long time ago with no apparent author, you are probably good to go. Most songs, especially the songs on TikTok, are owned by others and protected by copyright laws. For these songs, if they are distributed through royalty-free licenses, for example, through Creative Commons licenses, you are permitted to use them as long as you follow the restrictions in the licenses. If you are using music directly from TikTok, you also automatically get the licenses because the platform, TikTok, already obtained the licenses for you. In other situations, you may be allowed to use certain music for a short time under the doctrine of fair use. However, most commercial uses are hardly fair use.
If you already own a copyright, you can freely license it to others, because you have the exclusive legal right to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.
Below is a list of the types of work that can be filed with the U.S. Copyright Office:
- Literary Work
Literary Works include a wide variety of works such as fiction, nonfiction, poetry, textbooks, reference works, directories, catalogs, advertising copy, compilations of information, computer programs and databases.
- Work of the Visual Arts
Visual Arts works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, technical drawings, and architectural works.
- Work of the Performing Arts
Work of the performing arts can be a musical work (with or without lyrics), a dramatic work (such as a screenplay, play or other script), a pantomime, or a choreographic work.
- Sound Recording
This refers to a sound recording and the underlying musical, dramatic, or literary work(s) that is embodied in that recording.
- Motion Picture/Audiovisual Work
An audiovisual work is a work that consists of a series of related images that are intended to be shown by the use of a machine or device, together with accompanying sounds, if any.
If your dance went viral or is of commercial value, it can be worthwhile to obtain a copyright registration for it. With the Berne Convention, your copyright registration in the U.S. also offers you certain protections in other 196 party countries.
Sincerely yours,
Silvia Sun, Esq.
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