Wake Forest Law Review
29Oct

Viral for the Wrong Reasons: Credit or Copyright for Short Choreographic Works?

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By: Maryclaire M. Farrington

Credit or copyright?  That is the question. On September 25, 2019, fourteen-year-old Jalaiah Harmon created a short, twenty-second dance, dubbed “the Renegade,” and posted it on Instagram.[1]  In the weeks after, the video racked up about 13,000 views, inspiring other Instagrammers to recreate the dance and post it themselves.[2]  By October, the dance had migrated to TikTok, and Jalaiah was lost in the endless echoes of “the Renegade.”[3]  Jalaiah was not credited once.[4]

However, Jalaiah did not seek legal action, and did not attempt to copyright her dance,[5] she simply wanted credit.[6]  But where is the line between copyright and credit, and must you have one to perpetuate the other?

The Renegade credit-or-copyright debacle is reminiscent of the 2018 Fortnite lawsuits.[7]  In these lawsuits, a handful of basketball players, pop-culture icons, and even Carlton from the Fresh Prince of Bel-Air attempted to take on Epic Games for their Fortnite “emotes,” alleging copyright infringement and violation of the right of publicity.[8]

The United States District Court for the Central District of California cut Carlton at his knees when the court dismissed his suit, holding: “No one can own a dance step.”[9]  The court went on to explain that “[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”[10]

Copyright does not extend to “short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”[11]  The reasoning behind such stingy protection is Congress’ unwavering commitment to “progress.”[12]  Copyright law walks the line between “providing protection to incentivize authors to create new works and allowing leeway so that new works can be created without being unduly strangled by the rights of preexisting works.”[13]  Thus, Carlton’s swinging arms aren’t copyrightable, and neither is your favorite athlete’s end-zone jig.[14]

But where is the line between “individual dance steps” and “choreographic routines?”[15]  The United States Copyright Office provides some clarity: “[c]horeography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”[16]  Common elements of copyrightable choreography include:

  • Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage
  • A series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole
  • A story, theme, or abstract composition conveyed through movement
  • A presentation before an audience
  • A performance by skilled individuals
  • Musical or textual accompaniment[17]

Analyzing Jalaiah’s Renegade under these factors, it seems as though it might be copyrightable.  The hurdles don’t stop there, though. Though the filing costs $45 for a single author or $65 for all other filings,[18] “[p]roviding the requisite material for an ironclad copyright application can also be costly.”[19] For example, a single Labanotation score,[20] which is a “codified dance notation” similar to sheet music, might cost an individual $5,000.[21]  This may explain why, out of the 500,000 applications the Copyright Office receives each year, typically less than 20 are “choreographic works.”[22]  Furthermore, the “world of professional dance is a small one built largely on reputation—so, historically, choreographers haven’t been tempted to outright copy each other’s work. . . . .[23]”

So, what does this mean for the amateur dancers of TikTok?  “To be robbed of credit on TikTok is to be robbed of real opportunities.  In 2020, virality means income. . . . .”[24]  Should growing artists like Jalaiah be forced to invest in the copyright process to reap the benefits of their creativity?  As is seemingly the answer with anything internet-related: maybe, maybe not.  Whether it be social pressures of bourgeoning[25] and veteran[26] creators alike calling out copiers and demanding credit, or the strengthening legal argument some of these creators have,[27] some big names have begun to tip their hat to the original creators.[28]  Perhaps we can trust credit will be given where credit is due, or perhaps the Copyright Office is about to get a lot busier with #TikTokApplications.

[1] Jalaiah S. Harmon (@jalaiah), Instagram (Sept. 25, 2019), https://www.instagram.com/p/B22za3xD1Fh/?utm_source=ig_embed&utm_campaign=embed_video_watch_again.

[2] Taylor Lorenz, The Original Renegade, N.Y. Times (Feb. 13, 2020), https://www.nytimes.com/2020/02/13/style/the-original-renegade.html.

[3] Id.

[4] Id.

[5] See generally id. (discussing that Jalaiah only wants to receive credit for her dance). 

[6] Id.; see also J. Clara Chan, Tik Tok Star Jalaiah Harmon is More Than Just the Renegade Dance Creator in New Docuseries, Hollywood Rep. (Oct. 20, 2021), https://www.hollywoodreporter.com/business/digital/tiktok-star-jalaiah-harmon-renegade-docuseries-1235030529/.

[7] See, e.g., Nick Statt, Fornite Keeps Stealing Dances – And No One Knows if it’s Illegal, Verge (Dec. 20, 2018, 8:55 AM), https://www.theverge.com/2018/12/20/18149869/fortnite-dance-emote-lawsuit-milly-rock-floss-carlton (discussing similar occurrences including Russell Horning’s “floss dance” and Alfonso Ribeiro’s “The Carlton”).

[8] Id.; Chandler Martin, Whose Dance is it Anyway?: Carving Out Protection for Short Dances in the Fast Paced Digital Era, 98 N.C. L. Rev. 1001, 1002 (2020).

[9] Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss for Failure to State a Claim and Special Mot. to Strike (Anti-Slapp) Pl.’s Second Am. Complaint, Ferguson v. Epic Games, No. 2:18-cv-10110-CJC(RAOx), 2019 WL 578214 (C.D. Cal. 2019).

[10] Id.

[11] Id.

[12] Martin, supra note 8, at 1016 (“The Copyright Office’s interpretation of ‘simple routines’ and ‘short dance moves’ falls in line with how courts have previously interpreted building blocks in order to protect the broader copyright goal of promoting the progress of science and the useful arts . . . Such a right would not promote progress but instead inhibit it by depriving other creators of useful tools.”).

[13] Id. at 1015.

[14] Epic Games, supra note 9; Diane Faulkner, How to Copyright a Dance, LegalZoom, https://www.legalzoom.com/articles/how-to-copyright-a-dance (last updated July 16, 2021); Adi Robertson, Most of the Fortnite Dance Lawsuits are on Pause, Verge (Mar. 9, 2019, 12:23 PM), https://www.theverge.com/2019/3/9/18257385/epic-fortnite-lawsuit-ribeiro-2milly-dance-emote-lawsuits-withdrawn-pause-registration.

[15] Robertson, supra note 15 (“According to US copyright law, individual dance steps can’t be protected, but choreographic routines can—and there’s not much case law establishing a clear boundary between the two.”).

[16] U.S. Copyright Off., Circular 52: Copyright Registration of Choreography and Pantomime, at 1 (2021) https://www.copyright.gov/circs/circ52.pdf.

[17] Id.

[18] Fees, Copyright.gov, https://www.copyright.gov/about/fees.html (last visited Oct. 25, 2021) (choose “Registration”).

[19] Rebecca Milzoff, Inside ‘Single Ladies’ Choreographer JaQuel Knight’s Quest to Copyright His Dances, Billboard (Nov. 5, 2020), https://www.billboard.com/articles/business/9477613/jaquel-knight-beyonce-megan-thee-stallion-billboard-cover-story-interview-2020.

[20] Id.

[21] Milzoff, supra note 20.

[22] Id.

[23] Id.

[24] Lorenz, supra note 2.

[25] See, e.g., Tanya Chen (@tanyachen), Twitter (Mar. 28, 2021, 11:17 AM), https://twitter.com/tanyachen/status/1376191660623863812 (representing an example of a new and flourishing creator).

[26] See, e.g., Chancelor Johnathan Bennett (@chancetherapper), Twitter (July 13, 2018, 12:23 PM), https://twitter.com/chancetherapper/status/1017806749028573184 (representing an example of a seasoned creator).

[27] Paige Skinner, The TikToker Who Created The Viral “Savage” Dance Is Copyrighting The Moves, BuzzFeed News (Aug. 2, 2021, 3:19 PM), https://www.buzzfeednews.com/article/paigeskinner/savage-dance-copyrighted.

[28] Fortnite (@FortniteGame), Twitter (July 17, 2020, 8:00 PM), https://twitter.com/FortniteGame/status/1284276702131089408?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1284276702131089408%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.theverge.com%2F2020%2F7%2F17%2F21329157%2Ffortnite-renegade-dance-emote-jalaiah-harmon-for-sale-now.

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15Oct

TikTok, Inc. v. Trump: Can TikTok’s U.S. Operations Last?

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Composite image created using an original photograph by Gage Skidmore of President Donald Trump, via flickr.com.

By Christopher R. Taylor

On August 6th, President Trump issued Executive Order 13,942 (“TikTok Prohibition Order”) prohibiting transactions with ByteDance Ltd. (“ByteDance”), TikTok’s parent company, because of the company’s data collection practices regarding U.S. users and its close relationship with the Peoples Republic of China (“PRC”).[1] Eight days later President Trump issued a subsequent order (“Disinvestment Order”) calling for ByteDance to disinvest from Musical.ly, an application that was acquired by ByteDance and later merged with TikTok’s application.[2] TikTok is now engulfed in a legal battle against the Trump administration fighting both of these orders and was recently partially granted a preliminary injunction from the TikTok Prohibition Order.[3] However, the question remains—how successful will TikTok be in stopping the orders and what effect does this have on future cross-border transactions?

The foundation for President Trump’s TikTok orders was laid over a year earlier with Executive Order 13,873.[4] This order declared a national emergency under the International Emergency Economic Power Act (“IEEPA”) because of the “unusual and extraordinary threat” of “foreign adversaries . . . exploiting vulnerabilities in information and communication technology services.”[5] This national emergency was renewed for another year on May 13th, 2020.[6] Shortly after this renewal, the Trump administration issued both TikTok orders.

The TikTok Prohibition Order delegated to the Secretary of the Department of Commerce the task of defining specific prohibited transactions with ByteDance within 45 days of the execution of the order.[7] Following the president’s directive, the Secretary issued five phased prohibitions on transactions with TikTok, all with the stated purpose of limiting TikTok’s spread of U.S. users’ sensitive personal information to the PRC.[8] The Department of Commence implemented these prohibitions based primarily on two threats: (1) TikTok would share U.S. users’ personal data with the PRC to further efforts of espionage on the U.S. government, U.S. corporations, and U.S. persons and (2) TikTok would use censorship on the application to shape U.S. users’ perspective of the PRC.[9]

While the Trump administration was at work attempting to remove or substantially change TikTok’s U.S. presence, TikTok did not stand by idly. Instead, TikTok and ByteDance initiated an action challenging the Trump administration’s authority under the Administrative Procedure Act (“APA”) and the U.S. Constitution.[10] After filing the action in the U.S. District Court for the District of Columbia, TikTok moved for a preliminary injunction.[11] On September 29th, the court partially granted the preliminary injunction.[12]

Among the various arguments presented for the preliminary injunction, TikTok’s strongest argument was that the Trump administration’s actions violated APA § 706(2)(C) by exceeding its statutory authority under the IEEPA.[13] The IEEPA prohibits the President from “directly or indirectly” regulating “personal communication, which does not involve a transfer of anything of value” or the importation or exportation of “information or information materials.”[14] The IEEPA does not define “information materials,” however, it does provide examples, which include photographs, films, artworks, and news wire feeds.[15]

TikTok argued both of these exceptions applied, making the Trump administration’s prohibitions unlawful.[16] First, TikTok argued that the information exchanged by its global users includes art, films, photographs, and news.[17] Therefore, the information exchanged on TikTok fits within the definition of information materials.[18] Second, TikTok argued most of the communications exchanged on the application are among friends, and thus do not involve anything of value.[19]

The government countered by arguing that neither exception applied, contending for a narrower interpretation of the IEEPA exceptions.[20] First, the government argued the information materials exception did not apply because the TikTok prohibitions only regulate “business-to-business economic transactions,” and does not regulate the exchange of “information materials” by TikTok users themselves.[21] In the alternative, the government asserted Congress did not intend to create such a broad exception that would allow foreign adversaries to control data services.[22] Second, the government argued that some communications on TikTok are of value to users and, even if all communications are not of value to all users, they are of value to TikTok itself.[23] The government asserted that the use of the application alone provides value to TikTok making the exchanged communications fall outside of the IEEPA exception.[24]

In partially granting TikTok’s preliminary injunction, the court found both exceptions applied to TikTok.[25] First, the court held the content on TikTok’s application constitutes “information materials.”[26] Although the government only regulates economic transactions, the prohibitions still indirectly regulate the exchange of “information materials.”[27] Thus, the Trump administration’s actions directly fit within the IEEPA exception barring indirect regulation of information materials.[28]

Turning to the second exception on value, the court recognized some information on TikTok was of value.[29] However, it found the majority of the information provided no value to users.[30] Furthermore, the government’s argument regarding the value of communications to TikTok was at odds with Congressional intent.[31] The court found if Congress meant to look at the value provided to the company, as opposed to the value provided to users, the exception would be read out of existence.[32]

After finding that both exceptions applied, the court found irreparable harm to TikTok and equity supported partially granting the preliminary injunction.[33] However, the court refused to grant an injunction blocking the whole TikTok Prohibition Order because only one of the prohibitions was an imminent threat to TikTok.[34] The injunction only blocked the prohibition on TikTok downloads and updates from online application stores and marketplaces, leaving the remaining four prohibitions unaffected.[35]

While it appears TikTok has won the first round of this legal dispute, this fight is likely far from over. In response to the grant of the partial preliminary injunction, the Department of Commerce explained it is prepared to “vigorously defend the . . . [Executive order] and the Secretary’s implementation efforts from legal challenges.”[36] Based on this strong reaction, the dispute seems fertile for further quarrels regarding the merits of both executive orders.

The current TikTok dispute and the Trump administration’s willingness to use the IEEPA will likely also have broader implications for cross-border transactions, especially those involving the Peoples Republic of China or personal data. Since its enactment in 1979, presidential use of the IEEPA has become more frequent and broader in scope.[37] Thus, it is likely presidential use of the IEEPA will continue to grow no matter the President. Furthermore, the Trump administration’s strong stance toward the PRC has exacerbated tensions and led to an uptick in investigations into cross-border deals with Chinese companies.[38] Therefore, in-depth looks at deals with Chinese companies will likely continue to be the norm, at least for the remainder of the Trump presidency. In an effort to avoid disputes similar to TikToks, business dealmakers should obtain clearance from the Committee on Foreign Investment in the United States before the completion of any cross-border transaction, especially those involving the PRC or personal data.[39]

[1] Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 6, 2020).

[2] Order on the Acquisition of Musical.ly by ByteDance Ltd, 2020 Daily Comp. Pres. Doc. 608 (Aug. 14, 2020).

[3] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11, *26 (D.D.C. Sept. 27, 2020).

[4] Exec. Order No. 13,873, 84 Fed. Reg. 22,689 (May 15, 2019).

[5] Id.

[6] Notice on Continuation of the National Emergency with Respect to Securing the Information and Communications Technology and Services Supply Chain, 2020 Daily Comp. Pres. Doc. 361 (May 13, 2020).

[7] Exec. Order 13,942, at 48,638.

[8] See Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60,061 (Sept. 24, 2020) (prohibiting new downloads and updates from the app-store; servers supporting TikTok in the U.S.; content delivery services used by TikTok; internet transit or peering agreements; and the use of TikTok code, services or functions). The Secretary set up a phrased implementation of this order, making the app store ban effective September 20th, 2020, and the remaining four prohibitions effective November 12th, 2020. Id.

[9] Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary Injunction at Ex. 1, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020).

[10] Complaint at 30–42, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020). The specific counts in the complaint include allegations of (1) violations of APA § 706(2)(A) and § 706(2)(E), (2) violations of the First Amendment’s Right to Free Speech, (3) violations of the Due Process Clause of Fifth Amendment, (4)  ultra vires action under IEEPA because there is no national emergency, (5) ultra vires action because actions restrict personal communications and information violating IEEPA, (6) violation of Non-Delegation Doctrine of IEEPA, and (7)  violation of Fifth Amendment Taking Clause. Id.

[11] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11–12 (D.D.C. Sept. 27, 2020).

[12] Id. at *26.

[13] See id. at *21. 

[14] 50 U.S.C. § 1702(b)(1), (3).

[15] Id. § 1702(b)(3).

[16] TikTok, 2020 U.S. Dist. LEXIS 177250, at *14.

[17] Id. at *15–16.

[18] Id. at *15.

[19] See id. at *20.

[20] See id. at *16, *17–18, *20.

[21] Id. at *16.

[22] Id. at *17–18.

[23] Id. at *20. The government’s argument was that value is provided to TikTok simply by users’ presence on the application. Id.

[24] Id.

[25] See id. at *20–21 (“Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions constitute indirect regulation of ‘personal communication[s]’ or the exchange of ‘information or information materials.'”).

[26] Id. at *16

[27] Id. at *16–17.

[28] See id. at *17.

[29] See id. at *20.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at *21–25.

[34] Id. at *26.

[35] Id. at *25–26.

[36] Commerce Department Statement on U.S. District Court Ruling on TikTok Preliminary Injunction, U.S. Dept. of Commerce (Sept. 27, 2020), https://www.commerce.gov/news/press-releases/2020/09/commerce-department-statement-us-district-court-ruling-tiktok.

[37] Christopher A. Casey et al., Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 17 (2020).

[38] See Julia Horowitz, Under Trump, the US Government Gives Many Foreign Deals a Closer Look, CNN (Mar. 16, 2018, 12:11 AM), https://money.cnn.com/2018/03/16/news/economy/trump-cfius-china-technology/index.html; Jeanne Whalen, TikTok was Just the Beginning: Trump Administration is Stepping Up Scrutiny of Past Chinese Tech Investments, Wash. Post. (Sept. 29, 2020, 3:12 PM), https://www.washingtonpost.com/technology/2020/09/29/cfius-review-past-chinese-investment/.

[39] See Adam O. Emmerich et al., Cross-Border M&A–2019 Checklist for Successful Acquisitions in the United States, Harv. L. Sch. F. on Corp. Governance (Jan. 30, 2019), https://corpgov.law.harvard.edu/2019/01/30/cross-border-ma-2019-checklist-for-successful-acquisitions-in-the-united-states/.

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