By: Christian Bonner
Almost every month there is a new dance hitting the internet, most frequently through social media platforms like Instagram, Tik Tok, or Triller. These dances spread like wildfire and before the original creator knows it, others are learning the moves, recording themselves doing the choreography, and posting it to their personal social media accounts to generate more views. And what’s wrong with that? The dances are fun, and everyone is doing them! But what happens when someone who did not create the dance gets a sponsorship deal for thousands of dollars, merely for doing someone else’s moves? Or when the original creator of the newest viral dance attempts to claim credit and capitalize off her choreography’s success, but someone else beats her to it and there is nothing she can do about it? That is the current reality for most of today’s internet choreographers.
Full copyright protection in the United States was finally extended to choreographic works in 1976, but there are still many types of choreography that will not qualify. Of critical importance to today’s social media choreographers are individual movements/simple routines and social dances. So the Milly Rock? The courts are likely to rule that rapper 2 Milly’s widely recognized dance is not protectable choreography, because it constitutes simple movements. Because of the lack of protection provided to 2 Milly’s Milly Rock, the free video game Fortnite was able to profit off 2 Milly’s moves. Fortnite players can purchase “emotes” for their game avatars to allow them to do popular dance moves and routines, of which includes an almost identical dance to the Milly Rock. So, while Fortnite is making millions from these dances, 2 Milly and other dance creators (“Backpack Kid” Russell Horning and Alfonso Ribeiro have filed similar suits against the makers of Fortnite for misappropriating their popular dances) have received zero compensation.
While simple routines and movements may be an uphill battle for courts to provide copyright protection, what can we do about other choreographers who create work that would otherwise be protectable if they filed for copyright protection? I am thinking of fourteen-year-old Jalaiah Harmon, who created the popular “Renegade” choreography on Instagram. The Renegade involves a series of fast and complex moves and could likely qualify as a “choreography” under the U.S. Copyright’s Office’s definition. But someone else was able to learn Jalaiah’s choreography and capitalize off it before Jalaiah and gave Jalaiah no credit. While Jalaiah’s story has since been discovered and she has now received her proper recognition, a copyright protection could have taken her even further with legal rights to the choreography she worked hard to create. We must encourage choreographers to protect their work by filing for copyright protection to ensure that what has happened to Jalaiah will not happen to others. Additionally, we must hope that the courts involved in current choreography litigation will acknowledge the rapidly-changing worlds of dance and media, and expand legal protection to better serve the current needs of the creative community.