Is A Viral Dance Copyright Protected?
If you think you've got the next viral dance craze, or you're just slightly concerned about jumping on board with the next dance craze, because you've got a business social media account and you don't want to be infringing any copyrights then listen up!
Is the dance considered to be choreography under US copyright law?
Very, very few choreographers have actually registered their choreography with the copyright office. The most famous recent example is the dance to Single Ladies by Beyonce choreographed by JaQuel Knight.
First, it's important to know what qualifies as choreography under US Copyright law. Interestingly, choreo is the only work in the Copyright Act that isn't actually defined. We only know what doesn't qualify as choreography, and that's kind of based on the history of the Copyright Act.
Individual movements or dance steps themselves are not copyrightable. This includes your basic waltz step, the grapevine, second position in ballet or to get more real things like the Whoa, the Dab, that kind of stuff. Those are not copyrightable all by themselves and even put together not really copyrightable. It's got to fall closer to a full-on ballet than a simple two-step.
However, the copyright office says that a choreographic work in order to be registerable is typically intended to be performed by a skilled performer before an audience.
Okay, so who is a skilled performer? Does it have to be a classically trained ballet dancer or tap dancer? Do we consider the performer to be less skilled, the more viral a dance craze gets because the more viral it is, the more people are doing it, and the more people are doing it, then probably aren't technically skilled? And so that makes up the dance somehow less skilled? And what constitutes an audience? Does a TikTok or Instagram following qualify?
So many questions!
As of right now, May 2022, it's safe to say that viral dances are not copyright protectable.
But you never know when the copyright law will be updated to reflect technology. And just in case you come across one that is copyright protected, what's the loophole?
What allows you to get on social media and shake it up?
Say it with me now - Terms of Use. Here's what TikTok's Terms of Use say:
It basically says that content you create and upload, aka user content, you allow others to use and repurpose and extract so by an original choreographer dancing and putting that content on TikTok, it allows users to use it on TikTok.