By: Nalani Wilson
Intellectual property law has historically “invested in whiteness and racial inequality in ways that necessitate both examination and undoing.”[1] This can be traced back to slavery, when black people were treated as property and thus could not own their own property, including intellectual property. With regard to patents specifically, for example, “a study found that from 1970 to 2006, black American inventors received six patents per million people, compared to 235 patents per million for all U.S. inventors . . . [and] black Americans ‘apply for patents at nearly half the rate of whites.’”[2] However, this type of disparity can also be seen in trademark and copyright holdings.[3] In today’s information and technology age, intellectual property is currency, and the inability of communities of color to access this currency, whether due to a lack of access or the structure of the laws themselves, has left them worse off than their white counterparts.[4]
When it comes to the black community, the appropriation of black culture is a story as old as time. From music, speech, hairstyles, and choreography, black culture and black artists have gone uncredited many times. The rise of digital platforms such as Instagram and TikTok has made this problem more pervasive and, in some ways, more difficult to address under the current state of intellectual property law. This all came to a head last summer, when black TikTok content creators went on strike. Prior to the strike, young white TikTok stars such as Charli D’Amelio and Addison Rae were invited to perform the dances of black content creators on mainstream platforms such as Jimmy Fallon’s Tonight Show and NBA All-Star Weekend, with no credit given to the original creators until backlash followed on social media platforms.[5] The actual creators of these dances, such as Jalaiah Harmon (Renegade), Mya and Chris (Up), and Keara Wilson (Savage) are missing out on countless financial and promotional opportunities because of the lack of due credit that is afforded to them at the time these dance challenges go viral.[6] Meanwhile D’Amelio was able to gain millions of followers and dollars after going viral using Harmon’s Renegade choreography.[7]
Part of the issue stems from the application of antiquated intellectual property laws to modern social media platforms. Copyright law, for example, makes it difficult to assert rights over certain types of choreography. According to the Compendium of U.S. Copyright Office Practices, in order for choreography to be copyrightable, it must include one or more of the following elements: “rhythmic movements in a defined space; compositional arrangement; dramatic content; a presentation before an audience; execution by skilled performers; or a musical or textual accompaniment.”[8] However, the Compendium distinguishes between social dances and choreographic works.
“[S]ocial dances are intended to be executed by the public, not to be performed for the public as audience.” Performing a social dance is often a participatory, social experience, while the performance of a choreographic work is an expressive act that is typically intended to be performed for the enjoyment of others. Whereas social dances are generally capable of being performed by members of the public, choreographic works typically cannot.[9]
Where do viral dance trends fit into this picture? The United States Copyright Office has provided little guidance on this topic, but it is notable that Keara Wilson was granted copyright protection for her Savage Dance Challenge back in 2021.[10] However, as social media becomes a means of income for many, the law must be updated.
[1] Anjali Vats and Deidre A. Keller, Critical Race IP, 36 Cardozo Arts & Ent LJ 735
[2] Shontavia Johnson, The Colorblind Patent System and Black Inventors (citing Holly Fechner & Matthew S. Shapanka, Closing Diversity Gaps in Innovation: Gender, Race, and Income Disparities in Patenting and Commercialization of Inventions, 19 Tech. & Innovation 727, 729 (2018))
[3] K.J. Greene, Intellectual Property At The Intersection Of Race And Gender: Lady Sings The Blues, 16 Am. U.J. Gender Soc. Pol’y & L. 365
[4] Id.
[5] Sharon Pruitt-Young, Black TikTok Creators Are On Strike To Protest A Lack Of Credit For Their Work (July 1, 2021, 11:00 PM), https://www.npr.org/2021/07/01/1011899328/black-tiktok-creators-are-on-strike-to-protest-a-lack-of-credit-for-their-work
[6] Nerisha Penrose, TikTok Was Built on the Backs of Black Creators. Why Can’t They Get Any Credit?, Elle (April 29, 2021), https://www.elle.com/culture/a36178170/black-tiktok-creators-mya-nicole-chris-cotter-addison-rae-jimmy-fallon/; Taylor Lorenz, Meet the Original Renegade Dance Creator: Jalaiah Harmon, New York Times (February 13, 2020), https://www.nytimes.com/2020/02/13/style/the-original-renegade.html
[7] Nardine Sands, Backlash be damned, TikTok star Charli D’Amelio just made history on the platform, Los Angeles Times (November 23, 2020), https://www.latimes.com/entertainment-arts/story/2020-11-23/tiktok-charli-damelio-100-million-followers-record
[8] U.S. Copyright Office, Compendium of U.S. Copyright Practices, §805.2; U.S. Copyright Office, Copyright Registration of Choreography and Pantomime (Circular 52), https://www.copyright.gov/circs/circ52.pdf
[9] U.S. Copyright Office, Compendium of U.S. Copyright Practices, §805.5(B)(2)
[10] Copyright Registration Record PA0002243519; Njera Perkins, A Year After Creating Megan Thee Stallion’s #SavageChallenge, TikToker Keara Wilson Earns Her Copyrights, AfroTech (July 29, 2021), https://afrotech.com/megan-thee-stallion-savage-challenge-tiktoker-keara-wilson-copyrights
