World Views | There’s a long history of dances being pilfered for profit – and TikTok is the latest battleground

In January 2020, 14-year-old Jalaiah Harmon created what would become one of the biggest viral dance sensations on TikTok.
But few users knew that Harmon, who is Black, invented the dance, which she dubbed the Renegade – at least not until a month later, when The New York Times drew attention to her case. That’s because a TikTok user had copied the dance, and it was that TikToker’s rendition that went viral.
Because Harmon didn’t get credit, she wasn’t able to reap the benefits of more views and followers, which, in turn, could have led to collaborations and sponsorships.
Harmon is only the latest in a long list of women and people of color whose choreography and dance work have been pilfered for profit – a story that dates back to the origins of jazz dance in the 19th and early 20th centuries.
But these days, TikTok is the battleground – and it isn’t just Harmon who’s had her work lifted. In June 2021 several popular Black creators were so fed up with having their dances stolen or not credited that they decided to join forces and go on strike, refusing to post new dance content to bring attention to the issue.
Choreographers fight for royalties
Laying claim to a dance isn’t as straightforward as, say, a poet saying they have exclusive rights to a poem they’ve written.
Designed to protect “intangible cultural goods,” copyright, according to the U.S. Copyright Office, gives “Authors and Inventors the exclusive right to their respective Writings and Discoveries.”
Established in the hopes of rewarding innovation and promoting progress, the first U.S. copyright laws, which were established in 1787 and 1790 and based on statutes from Britain, didn’t grant rights to artists and dancers. Only writers were protected.
In fact, the very concept of owning choreography didn’t exist until the 20th century when dancers started to lay claim to their work in court.
In 1909, an Indian dancer named Mohammed Ismail tried to sue white dancer Ruth St. Denis, claiming he was the originator of one of St. Denis’ “Oriental” dances. In 1926, African-American blues singer Alberta Hunter claimed she held the copyright to the popular dance the Black Bottom, an African American social dance.
Hunter performed the Black Bottom in front a white audience in 1925. A year later, the dance appeared in George White’s revue “Scandals,” which ignited the Black Bottom dance craze.
However, little came of Ismail and Hunter’s efforts. More attempts would follow. In 1963, performer Faith Dane sued M&H Company for royalties for her choreography in “Gypsy” and lost. In the 1950s and 1960s, choreographer Agnes de Mille advocated for copyrights specific to choreography because she got very limited royalties for her work on the hit musical “Oklahoma!”
It wasn’t until 1976 that copyright protection was updated to specifically include choreographic works.
A delicate dance with copyright
But this hasn’t exactly led to a windfall of royalties for choreographers.
Congress has established four guidelines to determine whether a work can be granted copyright protection: originality, fixation, idea versus expression and functionality.
In choreography, it’s the fixed “expression” that’s being protected, not the “idea” behind it. This is why New York City Ballet can copyright their choreographed version of “The Nutcracker,” but other artists can create their own versions or expressions of the story as plays, storybooks or choreographed dance.
Artists and scholars still debate what, exactly, it is that a dancer or choreographer is trying to claim as their own. Is it the dance as a work of art, the choreography or the specific performance?
So while creators can apply to register the recorded expression of their idea with the government, many choreographers – perhaps due to so many gray areas in what is eligible for copyright – still don’t realize that they they have something of value that can or should be protected. Jill Vasbinder, University of Maryland
MDT/The Conversation