By Katherine McGonigal:
In September 2021, the social media platform TikTok, a site that allows users to post short content and videos that ranges from dancing to storytelling and everything in between, reached one billion users.[1] And considering the potential to make hundreds of thousands of dollars a year for posting content on the app, including through a fund exclusively for content creators on TikTok – the “TikTok Creator Fund” – it’s no wonder that so many people are flocking to the social media source for their chance to become the next big celebrity.[2] However, as budding young influencers start to create their own brand and build a following, they should consider copyright law, both who and what it protects, before posting.
Copyright is meant to protect “original works of authorship” – this includes media like music, photos, and videos, all of which are essential to the creation of an identity on TikTok.[3] It is important to note that ideas alone are not protectable under copyright law.[4]
Are TikTok Dances Copyrightable?
While on a scroll through the app, it seems unavoidable to see countless videos of people showing off a new dance or trying their hand at choreography that has amassed millions of views for other creators. If a dance is created for mass consumption by the public (think: line dance), a category most TikToks likely fall under, it is not copyrightable.[5] For a dance to actually be copyrightable, it must be considered choreography, “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole”.[6] Pantomime, “the art of imitating, presenting, or acting out situations, characters, or events through the use of physical gestures and bodily movements” that have been recorded in some manner, whether that is a recording of the dance being performed, or the steps having been written down, photographed, or drawn, is also copyrightable.[7] More weight is usually given to those dances created for professional use in a stage production or show that was not meant to be copied.[8] This does not seem to fit most dances created for TikTok, where the goal is for a dance to go viral and become a trend. While the ability to copyright a dance created on and for TikTok is probably not all that likely, it is still an issue that could be looked at on a case-by-case basis and users who intend to copy a dance should be aware of the risk, albeit a seemingly low one.
Music, TikTok, and Copyright
What is perhaps the bigger issue on Tiktok are all the clips of music used without permission of the artist or other copyright holder. For users who choose music offered by the app when creating a video, there shouldn’t be concern – TikTok has licensing deals with copyright holders that allow creators to use those music clips.[9] For users who choose to forego TikTok’s library and create content that uses music or snippets from TV or movies that are copyrighted without permission from the copyright holder, there is concern. Copyright owners hold the sole right to reproduce their copyrighted work and the right to control how their copyrighted material is used, among other rights – which gives them the basis to file suit against those using their copyrighted material without permission.[10]
Should a copyright holder bring suit, an infringer could find themselves facing heavy penalties, depending on the level of infringement.[11] There are defenses to infringement, such as fair use[12], but users should not blindly rely on this exception.[13]
Given these copyright issues, new creators seeking to forge their own brand would be wise to focus on original material that does not use other’s materials (TikTok’s music library is an exception) but should be aware that posting on the app leaves them susceptible to having their own work copied.
[1] Jessica Bursztynsky, TikTok Says 1 Billion People Use the App Each Month, CNBC (Sept. 27, 2021), https://www.cnbc.com/2021/09/27/tiktok-reaches-1-billion-monthly-users.html.
[2] Jade Scipioni, Here’s How Many Social Media Followers You Need to Make $100,000 CNBC (May 20, 2021), https://www.cnbc.com/2021/04/30/how-much-money-you-can-make-off-social-media-following-calculator.html.
[3] What Does Copyright Protect?, U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-protect.html.
[4] Id.
[5] Diane Faulkner, How to Copyright a Dance, LegalZoom, (July 16, 2021), https://www.legalzoom.com/articles/how-to-copyright-a-dance.
[6] What Type of Dances Are Copyrightable?, Copyright Alliance, (Apr. 29, 2021), https://copyrightalliance.org/faqs/what-type-of-dances-are-copyrightable/; Copyright Registration of Choreography and Pantomime, Circular 52,U.S. Copyright Office, https://www.copyright.gov/circs/circ52.pdf.
[7] Id.
[8] Faulkner, supra note 5.
[9] Lydia Bayley, Tiktok: A Copyright Time Bomb?, Ip Bytes Loyola University Chicago, (Apr. 2021), http://blogs.luc.edu/ipbytes/2021/03/29/tiktok-a-copyright-time-bomb/.
[10] What Rights Do Copyright Owners Have?, Copyright Alliance, (Feb. 14, 2021), https://copyrightalliance.org/faqs/what-rights-copyright-owners-have/.
[11] Copyright Infringement Penalties, Purdue University Copyright Office, https://www.lib.purdue.edu/uco/CopyrightBasics/penalties.html.
[12] Fair use is a defense that allows for the copying of a copyrightable work if certain elements weigh in favor of the copier and the copy encourages “freedom of expression”. More Information on Fair Use, U.S. Copyright Office, https://www.copyright.gov/fair-use/more-info.html.
[13] Intellectual Property Policy, TikTok, (June 7, 2021), https://www.tiktok.com/legal/copyright-policy?lang=en.
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