The Right to Dance: Copyright and Monetization in the Age of TikTok

Noor Ghuniem, Contributing Member 2024-2025

Intellectual Property and Computer Law Journal

I. Introduction

In today’s digital landscape, many individuals have the ability to amass substantial online followings by posting their creative content, which can often lead to significant revenue.[1] As a form of intellectual property (IP) law, copyright applies protections to a wide range of expressive works, including literature, drama, music, art, sound recordings, computer programs, architecture, and video games.[2] Copyright protections, however, are broadly written and allow for an expansive interpretation, including in their application to new forms of media.[3] The question then arises as to how far copyright protections extend to online content.

One of the most notable social media platforms of the 2020s is TikTok, where users, commonly referred to as content creators, upload short videos ranging from life vlogs and how-to guides to comedy skits and storytelling.[4]  

A significant area of contention on TikTok is that creators with large followings are often recreating content by creators with small followings.[5] This often occurs when a smaller creator posts a video of their own dance video, and then another creator posts a performance of the exact same dance, without giving proper acknowledgment to the original creator.[6] These acts inspired a community movement emphasizing the courtesy of crediting original creators when their work serves as inspiration.[7] However, the question of any existing legal obligations remains open.            

The following article examines the copyrightability of dance material shared on TikTok. Part II provides an overview of the copyrightable nature of choreography. Part III explores how this legal standard specifically applies to TikTok based content, even when dances may be derivatives or compilations of other works, and how any imitative clips may affect the ability to generate compensation. It will further address the challenges TikTok faces in identifying copyright infringements within a vast user base, especially when dance is a less easily traceable form of expression. Part III will also explore the issues that can arise from using copyrighted music in viral and original dance choreography, and the implications for artists who incorporate those dances into their concerts. Finally, Part IV will discuss future implications and predictions for copyright protections in the evolving digital landscape.

II. Background

Dance choreography received its first formal and direct protection under copyright law in 1978, when the Copyright Act of 1976 (“Act”) took effect.[8] The Act itself identifies eight categories of copyrightable works: literary works, dramatic works, pictorial/graphic/sculptural works, motion pictures, sound recordings, architectural works, and pantomimes/choreographic works, the definition of choreographic works remains unclear.[9] To be eligible for copyright protections, a choreographic work must be original, fixed in a tangible medium of expression and performed in a manner that allows it to be re-performed uniformly.[10] In the context of TikTok, the video recording nature would suffice as this allows the content to be “perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[11]

Proper application of the Act requires distinguishing between copyrightable dance choreography and uncopyrightable dance.[12] In Hanagami v. Epic Games, the Ninth Circuit clarified this distinction by citing the Compendium of U.S. Copyright Office Practices’s definition of choreography.[13] The Court said dance choreography is “the composition and arrangement of a series of dance movements and patterns organized into a coherent whole,” while uncopyrightable dance is described as a static and kinetic succession of bodily movements in rhythmic and spatial relationships.[14] Key elements of choreographic works include rhythmic movement in a defined space, compositional arrangement, musical or textual accompaniment, dramatic content, presentation before an audience, and execution by skilled performers.[15]

TikTok’s terms of service agreement generally protects IP rights by prohibiting the posting, sharing, and distribution of any content that is regarded as infringement.[16] However, the agreement also states that any creator using the application grants “affiliates, agents, service providers, partners, and other connected third parties,” an “unconditional, irrevocable, non-exclusive, royalty-free, perpetual worldwide license to use, modify, adapt, reproduce, create derivative works of, download, publish, transmit, and distribute…User Content in any format and on any platform, either now known or hereinafter invented.”[17] This means users who accept the terms recognize that TikTok has the right to utilize their uploads, referred to as “User Content,” and any related materials at its discretion, despite the IP rights the original creator holds.

The agreement, however, speaks specifically to TikTok’s usage of the videos produced, rather than the ability of other users on the platform to freely recreate material like choreography of original creators. Thus, the important question of whether copyright protections extend to choreography in TikTok dances remains unresolved.

Additionally, the vague nature of copyright statutory and case law definitions means that some dances may receive protection while others may not.[18] Courts have looked to different characteristics of the work such as composition, arrangement, movements, patterns, expression dichotomy, and length.[19] Despite this list, the criteria for determining which dances are copyrightable remains a topic of ongoing debate, examined by courts on a case-by-case basis.[20]

III. Discussion

What is Copyrightable?

For a TikTok dance to be copyrightable, it must be “fixed in a tangible medium,” meaning it needs to be recorded, written down, or otherwise documented.[21] Simply performing a dance without capturing it in a fixed form of media does not qualify for copyright protection, so TikTok dances seem to always meet this first prong.

Although there is no precise definition of “originality,” the second required prong, Feist Publications v. Rural Telephone Service helped to establish a low threshold for originality.[22] As applied to choreography, the originality (1) must be independently created, and (2) must possess at least some minimal degree of creativity, which is determined by the factfinder in each case.[23]

While the Compendium does not have the force of law as a backing, the document does serve as a guiding force for the Act and has been utilized by courts as an administrative resource in navigating the arguably confusing standards of copyrightability assessment.[24] For example, in Hanagami v. Epic Games, the District Court initially utilized the Compendium to find Hanagami’s choreography, used by characters in the videogame “Fortnite,” and described as “a two-second combination of eight bodily movements, set to four beats of music,” was not protectable under the Copyright Act.[25] The District Court found that the portion used was too “short” and a “small component” of Hanagami’s work, as the Compendium explains a lack of copyright protection when the choreographic work is not sufficient in length.[26] However, the Ninth Circuit disagreed with the District Court, and cited the Compendium again to emphasize that while the length of copied material is a factor, it is not the sole determinant of its copyright protectability.[27] The Ninth Circuit said a proper inquiry on whether the copied portion is qualitatively significant to the overall work, regardless of the brevity, is still necessary.[28] This goes to show that a work’s copyrightability potential is assessed on a case-by-case basis and is not necessarily dismissed when the imitated work does not meet one of the Compendium standards.

The Hanagami Ninth Circuit’s discussion helps guide determinations of whether TikTok dances are copyrightable. Many of the dances created for and posted on the app are thirty seconds long at most, which makes for a presumably short piece of choreography. With the ruling from Hanagami, we see that a dance, even if relatively limited in time, may qualify for copyright protection so long as there is a disputable degree of creativity independently created by the choreographer.  

The Compendium remains a large source of the guidance in interpretation of the statute, and explains that copyrightable choreography must exhibit sufficient originality and creativity; common movements, basic steps, or widely used gestures are not copyrightable, whereas unique and coordinated sequences can be.[29] This means something like clapping your hands alone would not be copyrightable, but clapping hands, coupled with a twirl, some shuffled feet, twisting of arms, and a series of jumps in connected movement could be.

The Copyright Office indicates protectable choreographic works usually encompass one or more of the following elements: (1) rhythmic movement in a defined space; (2) compositional arrangement; (3) musical or textual accompaniment; (4) dramatic content; (5) presentation before an audience; and (6) execution by skilled performers.[30] The Office has identified the existence of a continuum rather than a strict boundary when speaking to the distinction between copyrightable choreography and uncopyrightable dance.[31] While complex works like ballets and modern dances represent one end of this spectrum, simpler social dances and routines designed for the public exist on the other end.[32] Everything in between is arguable, in terms of copyright protectability, in a court of law.

What is Not Copyrightable?

There are several choreographic dance sequences that cannot be copyrighted including those that spell out letters with arm movements, basic yoga positions, celebratory end zone dances in sports games, or certain exercise routines.[33] This is primarily because these movements are considered functional physical movements or simple routines, which do not meet the threshold for copyright protection under the Copyright Act.[34] Case law has offered further explanation for exercises, as yoga or similar regimens are processes designed to improve the health of the general public.[35] In theory, the courts would want to avoid creating barriers or obstacles for usage of material that in its essence was designed for public consumption. Further simple routines like spelling out letters, or celebratory end zone dances are also intended to be executed by the public, and therefore do not constitute the type of individual creative authorship required for creative choreographic works.[36]

Another key factor is if a TikTok dance incorporates any aspect of a “social dance,” it may not be eligible for copyright protection.[37] A social dance, for purposes of copyright law is defined as a type of routine intended to be performed by the general public for their own personal enjoyment.[38] They are typically participatory and performed at social functions or in public places with a large mass of individuals gathered.[39] This means a TikTok dance that includes movements from the Macarena, the Cha-Cha slide, ballroom dances, folk dances, square dances, or line dances, may not be considered protectable for that portion, potentially rendering the entire dance moot in terms of copyright eligibility.  

Derivative and Compilation Works

Another route to copyrighted choreography is derivative works, which refers to material that is based on or derived from one or more preexisting works.[40] The choreography may be a new interpretation of an existing piece, or a completely original work that incorporates significant elements from prior choreography, as long as there is a considerable measure of new material it can be copyrightable.[41] To be eligible for registration, the choreography must contain a sufficient level of creativity.[42] In layman ‘s terms, this means whatever is added to the dance as new material can easily spotted – small changes would not meet the threshold. While generally building upon existing works is permissible, the resulting dance sequence must create something perceivably distinct from the original product.[43] For example, an individual could take a well-known dance from a pop music video and incorporate some of the moves into an entirely different ballet routine, or simply add noticeable transitions and introduce new sequences in between the copied portion to make the entire performance a fresh piece.

Further, the choreography created may become a compilation of existing dance moves.[44] The Copyright Act defines a compilation as “a work formed by the collection and assembling of preexisting materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”[45] An author who utilizes a compilation of preexisting choreography can still copyright their material if the selection, coordination, and/or arrangement of that preexisting material is independently created and contains a sufficient amount of creativity.[46] This still means, however, that the choreographer needs to add some individualized elements to meet the threshold for copyrightability.[47] If one were to try to combine all the dance sequences from High School Musical, they would still need to introduce pieces like changing the sequence of moves, adding transitions or infusing an individualistic style to allow a reasonable person to perceive even slight creativity. While the threshold for originality is not explicitly defined in the statute or Compendium, in Feist Publications, the United States Supreme Court stated that “the requisite level of creativity is extremely low; even a slight amount will suffice” and “[t]he vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”[48]

Considering all the guidelines and restrictions, obtaining copyright protection for a TikTok dance is arguably not very difficult, and the threshold of limitations remains low. Although these clips are often relatively brief, the dances are treated the same as choreography recorded on any other platform. If the creator commits to a sufficient level of individual creativity, ensuring they are properly changing any derivative moves and shying away from incorporating social dances or exercise movements, they can make a good case for obtaining a copyright on their composition.

Filing for a Copyright…or Not

Once a TikTok creator has established their dance as copyrightable per the aforementioned guidelines, they can file to register the choreography with the U.S. Copyright Office and protect their dance through rights in litigation and obtaining damages.[49] After obtaining their formal copyright protection, the creator can issue a Digital Millennium Copyright Act (DMCA) takedown request if they discover that someone else is using their dance without permission.[50] The takedown request is conducted through a series of steps where the copyright owner first sends a notice to a service provider requesting the provider remove the material infringing on the copyright.[51] The service provider could be an internet company like Xfinity, an administrator for a site like YouTube, or search engine like Google.[52] The filer of the grievance needs to include information like identification of the material that is claimed to be subject of the infringement, identification of copyright ownership, and a statement of good faith belief that the material is not being used in a manner authorized by law.[53] The provider is then responsible for notifying the user, subscriber, or person engaging in the infringement, and the infringer can either send a counternotice, or comply with the takedown.[54] If the infringer refuses to take the content down but the copyright owner still has reasonable belief of the infringement, a lawsuit can be filed.[55] The primary purpose of copyrighting these dances, however, is not to prevent others from dancing but rather to safeguard the creator’s ability to profit or be recognized for their work and avoid exploitation.[56]

While distinguishing between choreography and dance can be challenging given the broad definition, TikTok creators have managed to successfully navigate the landscape.[57] A notable example is Keara Wilson, whose “Savage” dance choreography went viral.[58] After her choreography gained widespread recognition, she filed with the U.S. Copyright Office and received official credit for her work.[59]

Monetization then becomes a complex issue to potentially address when other TikTokers use her choreography and earn money from their videos.[60] TikTok currently employs a program called the “Creator Fund,” which compensates creators for their content. Further, sponsorships from company collaboration are common when a user gains traction on the platform.[61]

In such cases, creators who copy Keara’s dance may risk legal action from Keara, who holds exclusive rights to reproduce, distribute, and perform her work per the Act.[62] If another creator wishes to monetize their videos featuring her copyrighted choreography, they should seek her permission, obtain a license, and share the profits with her. TikTok can and does instate safeguards like allowing its users to report alleged copyright infringement, taking down the material upon its findings.[63] There are billions of users on the platform, so having this reporting function in addition to an automated system and a moderator team allows the company to efficiently intercept as many copyright violations as possible.

In real-time practice, the resolution often leans toward informal agreements, with TikTokers simply requesting recognition for their work instead of pursuing legal avenues.[64] Keara, for example, has not taken action against anyone, including the major creators who profit greatly from posting their performances of her choreography to their large fanbases. [65] After being extensively credited for her creation through the good faith efforts of other platform users, Keara has been able to garner her own sponsorship agreements and generate revenue from her work.[66] Oftentimes, these original creators would just like to be credited with the work they have done, and the solution to that is having larger creators place acknowledgment in their captions.[67]

However, with her copyright on the dance, Keara still retains the right to bring action against any creator who has not obtained her permission.[68] Even high-profile celebrities who have incorporated her viral choreography into their own music videos and performances are not necessarily protected from legal action if a suit were to ensue. For example, artist Doja Cat used a viral TikTok dance created by Haley Sharpe in a music video for her song, “Say So.”[69] Haley did not register a copyright for the dance, and Doja Cat ended up publicly acknowledging her contribution by including Sharpe in the music video.[70] However, had Haley held a formally filed copyright, she could have pursued legal action against Doja Cat if permission for the dance’s use had not been granted.

IV. Conclusion

As TikTok continues to evolve into a significant source of income for more content creators, it may become an even greater focal point for copyright. TikTokers who successfully copyright their choreography will retain the right to argue for the removal of videos that infringe on their work, and users of other types of content may want to find ways to copyright their own unique work. As the digital world continues to expand and develop, it becomes increasingly imperative that content creators identify possible protections for their work proactively and ensure their unique contributions to the community are safeguarded.

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[1] Lyn Wildwood, How Many Followers Do You Need on TikTok to Make Money?, Blogging Wizard (Sept. 19, 2024), https://bloggingwizard.com/how-many-tiktok-followers-to-make-money/ [https://perma.cc/Y9FN-6P2U].

[2] 17 U.S.C. § 102 (2024).

[3] Hanagami v. Epic Games, Inc., 85 F.4th 931, 935 (9th Cir. 2023).

[4] Deborah D’Souza, What Is TikTok, Investopedia (May 23, 2024), https://www.investopedia.com/what-is-tiktok-4588933 [https://perma.cc/DQ3Y-7LLM].

[5] Brooke Banta, From Serpentine to Single Ladies: Navigating Choreography Copyrights in the Age of TikTok, SCBC Law (Apr. 2, 2024), https://www.scbc-law.org/post/from-serpentine-to-single-ladies-navigating-choreography-copyrights-in-the-age-of-tiktok [https://perma.cc/a3ry-s2uu].

[6] Id.

[7] Id.

[8] Stephen Wolfson, Dance and Copyright, Penn Libraries (Nov. 29, 2023), https://www.library.upenn.edu/news/dance-and-copyright [https://perma.cc/MPP6-M23J].

[9] 17 U.S.C 102

[10] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 800 (3d ed. 2021).

[11] Id.

[12] Wolfson, supra note 8.

[13] Hanagami v. Epic Games, Inc., 85 F.4th 931, 936 (9th Cir. 2023).

[14]Id.

[15] Id.

[16] Ali Johnson, Copyrighting TikTok Dances: Choreography in the Internet Age, 96 WASH. L. REV. 1025, 1238 (2021).

[17] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 300 (3d ed. 2021).

[18] Id.

[19] Hanagami v. Epic Games, Inc., 85 F.4th 931, 940 (9th Cir. 2023).

[20] Id.

[21] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 300 (3d ed. 2021).

[22] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S. Ct. 1282, 1287, 113 L. Ed. 2d 358 (1991).

[23] Id.

[24] Hanagami v. Epic Games, Inc., 85 F.4th 931, 945 (9th Cir. 2023).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id. at 939.

[30] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 300 (3d ed. 2021).

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1036 (9th Cir. 2015).

[36] Id.

[37] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 800 (3d ed. 2021).

[38] 12 Nimmer on Copyright § 8.05 (2023).

[39] Id.

[40] 17 U.S.C. § 101 (2024).

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] 17 U.S.C. § 101 (2024).

[46] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 800 (3d ed. 2021).

[47] Id.

[48] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

[49] How to Send a DMCA Takedown Notice, Copyright Alliance, https://copyrightalliance.org/faqs/how-to-send-dmca-takedown-notice/ [https://perma.cc/5LDK-CQ86]. 

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] David Sye. Literally Stealing the Show: A Brief and Recent History of Dance Copyright, Office for Intellectual Freedom, ALA (Jun. 7, 2021), https://www.oif.ala.org/literally-stealing-the-show-a-brief-and-recent-history-of-dance-copyright/ [https://perma.cc/PY7E-UZ3G].

[57] Brittney Nanton, Keara Wilson, Creator Of #SavageChallenge, Receives Copyright For Her Viral Dance, ESSENCE GU (May 1, 2024), https://girlsunited.essence.com/feedback/news/keara-wilson-copyright/ [https://perma.cc/7SUJ-K2CK].

[58] Id.

[59] Id.

[60] Ali Johnson, Copyrighting TikTok Dances: Choreography in the Internet Age, 96 WASH. L. REV. 1025, 1273(2021).

[61] Wildwood, supra note 1.

[62] 17 U.S.C. § 106 (2024).

[63] Transparency Center. TikTok, https://www.tiktok.com/transparency/en-us/content-moderation/ [https://perma.cc/GUS3-T4KP].

[64] Ali Johnson, Copyrighting TikTok Dances: Choreography in the Internet Age, 96 WASH. L. REV. 1025, 1267(2021).

[65] Megan Uy, An Interview With Keara Wilson, the 19-Year-Old Dancer Behind the “Savage” TikTok Choreo, COSMOPOLITAN (Aug. 5, 2020), https://girlsunited.essence.com/feedback/news/keara-wilson-copyright/ [https://perma.cc/GV6V-2NRF].

[66] Id.

[67] Id.

[68] Ali Johnson, Copyrighting TikTok Dances: Choreography in the Internet Age, 96 WASH. L. REV. 1025, 1266(2021).

[69] Lauren Strapagiel, A TikTok Dance Has Made The Jump To An Actual Music Video, BUZZFEED NEWS (Feb. 27, 2020), https://www.buzzfeednews.com/article/laurenstrapagiel/doja-cat-say-so-tiktok-dance-haley-sharpe [https://perma.cc/LC86-86E4].

[70] Id.