Widespread regulation copyright is just not sufficient to guard TikTok creators — Quartz

In January 2020, 14-year-old Jalaiah Harmon created one of the biggest viral dance sensations on TikTok.

But few users knew that Harmon, who is black, invented the dance she called the renegade – at least not until a month later when the New York Times raised her case. That’s because a TikTok user copied the dance and it was this TikToker version that went viral.

Since Harmon received no recognition, she could not benefit from more views and followers, which in turn could have led to collaborations and sponsorship.

Harmon is only the youngest in a long list of women and people of color whose choreography and dance work were stolen for profit – a story that goes back to the beginnings of jazz dance in the 19th and early 20th centuries.

But these days, TikTok is the battlefield – and it’s not just Harmon who has been lifted her job. In June 2021, several popular black creators got fed up with their dances being stolen or not credited that they decided to join forces and go on strike and refused to post new dance content to publicize the issue.

Choreographers fight for royalties

Claiming a dance is not as easy as having a poet say, for example, that he has exclusive rights to a poem that he wrote.

Designed to protect “intangible cultural assets”, according to the US Copyright Office, copyright law gives “authors and inventors the exclusive right to their respective writings and discoveries”.

Founded in the hope of rewarding innovation and encouraging progress, the first U.S. copyright laws, enacted in 1787 and 1790 based on British law, did not grant artists and dancers any rights. Only writers were protected.

In fact, the concept of owning choreographies didn’t exist until the 20th century when dancers began to claim their work in court.

In 1909, an Indian dancer named Mohammed Ismail tried to sue the white dancer Ruth St. Denis, claiming he was the originator of one of the “oriental” dances of St. Denis. In 1926, African-American blues singer Alberta Hunter claimed she owned the copyright to the popular dance Black Bottom, an African-American ballroom dance.

Hunter performed the Black Bottom in front of a white audience in 1925. A year later the dance appeared in George White’s revue “Scandals”, which sparked the black bottom dance craze.

But Ismail and Hunter’s efforts turned out to be little. More attempts would follow. In 1963, performer Faith Dane sued the M&H Company for royalties on her choreography in “Gypsy” and lost. In the 1950s and 1960s, the choreographer Agnes de Mille campaigned for choreographic copyrights, as she received very limited license fees for her work on the successful musical “Oklahoma!”

It was not until 1976 that copyright protection was updated to specifically include choreographic works.

A gentle dance with copyright

But that didn’t exactly lead to a godsend of royalties for choreographers.

Congress established four guidelines for determining whether a work can be copyrighted: originality, fixation, idea versus expression, and functionality.

In the choreography, the fixed “expression” is protected, not the “idea” behind it. Because of this, the New York City Ballet can copyright its choreographed version of The Nutcracker, but other artists can create their own versions or expressions of the story as plays, picture books, or choreographed dances.

Artists and scientists are still discussing what exactly a dancer or choreographer claims for himself. Is it the dance as a work of art, the choreography or the concrete performance?

So while creators can apply to register the recorded expression of their idea with the government, many choreographers still fail to realize – perhaps because of so many gray areas in what is copyright eligible – that they have something of value to do or should be protected.

George Balanchine, the founding director of the New York City Ballet, suffered a heart attack in 1978. But he didn’t make a will until he was told that the dozen of dances he created would generate royalty revenue that would go to the next of kin unless he ordered otherwise.

When pop culture pulls away from the avant-garde

Avant-garde artist Anna Teresa De Keersmaeker’s brief confrontation with Beyoncé shows how difficult it is to find out what is copyright infringement or plagiarism.

In 2011, De Keersmaeker claimed that Beyoncé plagiarized De Keersmaeker’s dances from two different works – “Rosas danst Rosas” and “Achterland” – in her music video “Countdown” without giving her credit.

Both artists made public statements acknowledging what had happened. It seems that while a significant part of De Keermaeker’s movement has translated into “Countdown”, it has also transformed – from a white, elitist, avant-garde environment to a black, pop-culture environment. One could advocate fair use, the doctrine that allows unlicensed use of copyrighted works under certain circumstances.

Still, this episode shows the gray areas of what is copyrighted. Is it okay to perform someone else’s dance moves in a new setting – for an audience that may not have any connection or knowledge of its origins? Does this make it a new work?

Copyright protection was developed primarily to encourage progress. The idea was that if writers and artists were given control of their work, they would create more original work, make a living from it, and keep creating.

However, the incentive to progress can also exist outside of copyright protection. This is what dancer and lawyer Jessica Goudreault argued in a 2018 article for the Cardozo Law Review.

She writes that for some dance styles “the field could never develop without the possibility of copying”, which “supports and promotes innovation”.

I would argue that this applies to the dances on TikTok. Without the ability for users to freely imitate the dances, these movements would not go viral. The dance creators wouldn’t get their moment in the sun – however brief it might be on social media – and other creators might be less inspired to innovate if they didn’t have the examples of their predecessors.

Can the copyright protection for TikTok even work?

If TikTokers and choreographers want to license a new dance, should they rely solely on the copyright system and all of its restrictions? Or is there another way to get recognition and encourage innovation in dance?

When dance videos are posted on the internet, they are copyrighted by default. In theory, this should prevent dancers from letting their work use their work without permission from others.

In reality, it is often difficult to know who made it first and what is meant by fair use. When do some dance steps become a new dance piece? In addition, it is not easy to find the original author or authors of a dance.

That’s because, unlike posts on Facebook, Twitter, and Instagram, TikTok posts don’t have a timestamp. Posts appear in a user’s feed in order of popularity, not chronologically. It’s difficult to find out who posted the content first.

I would suggest that common law copyright is not the solution here – and that the principles of open source could better serve creators.

Open source, a social movement of computer programmers, is underpinned by licensing criteria, which among other things ensure the integrity of the authorship. Open source licensing could solve the problem of getting the right people recognized for their work. This can be an open source license – which has not yet been clearly defined for dance works – or a Creative Commons license with a “CC-BY” designation that requires attribution, but leaves space for copying, adapting and remixing , and innovations. To do this, TikTok would have to add a time and date stamp in addition to a license setting function.

Perhaps honoring legacies and influences by naming where something comes from can heal the damage done over the years to People of Color and other choreographers whose work has been scrawled without recognition or thanks.

This article was republished by The Conversation under a Creative Commons license. Read the original article.

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