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Will dancers in the digital age ever be able to protect their moves?

Historically, copyrighting choreography favors artists working in traditional forms like ballet or modern dance. But that leaves a huge blindspot.

Will dancers in the digital age ever be able to protect their moves?
[Animation: @naenaetwinsofficial]

Listen to the latest episode of Fast Company’s Creative Control podcast on Apple Podcasts, Spotify, RadioPublic, Google Podcasts, or Stitcher.

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When you think about things having a copyright, what probably comes to mind are movies, music, books—really anything that has a well-documented history of piracy or plagiarism. Because that’s what copyrights are for: to promote the creation of original work by giving those creators the ability to make money from their efforts without fear of someone else reproducing it without their permission or any payment.

So, what about dance moves?

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In the vast history of dances that have had cultural impact—”The Macarena,” the hustle, the running man, the electric slide, the cha cha slide—none of them have been copyrighted. If those moves seem too simple to warrant a copyright, what can be said of the work of choreographers such as Michael Peters (“Thriller”), Anthony Thomas (“Rhythm Nation”), Brian Friedman (“I’m a Slave 4 U”), or Laurieann Gibson (“Bad Romance”)?

Copyrighting choreography is not impossible, but historically it’s been easier to win legal protection within more traditional forms such as ballet or modern dance.

But JaQuel Knight is fighting to have music video and social media choreography to be seen in the same light.

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Knight has become one of the leading choreographers and creative directors in entertainment, working with Megan Thee Stallion, Cardi B, N.E.R.D., and Victoria Monet.

His work with Beyoncé is what helped set in motion his initiative to protect not only his own work, but also the work of the choreographers and dancers coming behind him. In 2020, Knight successfully secured a copyright for his choreography in Beyoncé’s “Single Ladies” music video.

“It’s a process,” Knight said in a 2020 Fast Company interview. “It’s really nasty at times. It gets really dark, but it’s a process, because it’s something new and it’s something that we haven’t seen in this commercial environment.”

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The law in this realm is nowhere up to speed with culture. Getting it there is proving to be a painstaking process. But what Knight and the team around him are doing could write a new history of ownership for creators—and specifically creators of color.

An Epic situation

Helping Knight navigate the legalities of copyrighting dance is attorney David L. Hecht.

Hecht has litigated some of the most prominent and recent cases of choreography being used without their permission or compensation—namely, in representing entertainers coming after video game developer Epic Games and its wildly successful series Fortnite.

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David Hecht [Photo: Hecht Partners LLP]
In 2018, Hecht connected with Brooklyn rapper 2 Milly who claimed that Fortnite appropriated his signature dance move “The Milly Rock” for one of the game’s emotes, which are expressions or dances that players can buy for their characters for anywhere from $5 to $15. Epic Games does not release financial statements, but its recent court battle with Apple revealed that the company made more than $9 billion in revenue between 2018 and 2019. The bulk of that income came from players buying emotes, clothes, and the like for their characters.

Hecht says that 2 Milly’s concern was about more than just any windfall he might have received if Fortnite had licensed “The Milly Rock” for use in a game as popular as Fortnite. “2 Milly really was talking less about the money that he was owed and more about how this was misappropriation as far as renaming,” Hecht says in the latest episode of Fast Company‘s podcast Creative Control. “And so what upset me and upset him in seeing this was people were no longer calling the dance ‘The Milly Rock.’ They were starting to call it the ‘Swipe It,’ because that’s what Epic called it.”

Hecht filed a lawsuit on 2 Milly’s behalf against Epic in 2018, and he soon found himself representing other entertainers who had similar claims. Alfonso Ribeiro, best known as Carlton from The Fresh Prince of Bel-Air, alleged that Fortnite incorporated his signature dance from the show into the game. He believed that the Fortnite dance emote named “Fresh” was a digitized version of the dance popularly known as “The Carlton.” Russell Horning, aka backpack kid, went viral with the dance move “The Floss,” and he believed that it had also found its way into Fortnite without his authorization. Actor Donald Faison cried foul that another emote within the game bore a strong similarity to a dance move that he had busted out on the show Scrubs and he had not been consulted or compensated.

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“Sometimes, in my experience, companies with money, including big tech, they just don’t care, because they figure they can pay the lawyers,” Hecht says. “So, it is really David versus Goliath out there. That was actually part of the reason I think they chose to do what they did and target the people that they did. Because for the most part—and this is just my opinion—but a lot of my clients who were going after Epic were African American.”

“And that’s a problem,” Hecht continues. “The access to justice is a huge problem.”

Epic Games’s lawyers argued in a motion to dismiss in February 2019 that “No one can own a dance step. Copyright 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.”

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2 Milly dropped the lawsuit in March 2019 after a Supreme Court ruling that basically stated that people cannot sue for copyright infringement unless there’s an approved copyright for the intellectual property in question.

However, 2 Milly’s lawsuit and the surrounding media coverage did bring up a question not enough people have been asking: How do you copyright dance moves?

The delicate dance of copyright

According to the U.S. copyright office’s website, “Registrable choreographic works are typically intended to be executed by skilled performers before an audience.”

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Naturally, questions about who is defined as a skilled performer and what constitutes an audience in the digital age come to mind. The law historically has favored the work of choreographers such as George Balanchine and Martha Graham, who were pioneers in ballet and modern dance, respectively. But 2 Milly’s lawsuit against Fortnite, and the others, illustrate the need for copyright law to consider choreography in video games, music videos, and social media.

As noted above, the argument against Fortnite emotes meriting the rights afforded to copyright holders was that the dances in question were too simple. The current law is clear that “individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet,” which, to a certain extent is understandable. Much of choreography is an amalgamation of smaller dance moves, so it would be tricky to parse that out.

However, when you combine those “simple” dances with the right of publicity, which prevents the unauthorized commercial use of someone’s name, image, likeness, or other recognizable aspects of one’s persona, where does that leave a dance like “The Milly Rock,” “The Carlton,” or “The Floss” that are so clearly tied to particular public figures?

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“Clients reach out to me because, as they get famous or do things that are popular on the internet, [the right of publicity] in some ways protects them under [some] state laws,” Hecht says.

Even if seeking copyright protection is a thornier path for certain choreographers, Hecht notes that it’s not a total wash.

“I will tell creatives [that] there is a positive thing that you could take out of this, which is anyone can [at least try to] register choreography,” Hecht says.

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The potential for a copyright exists whenever the art form in question is fixed in a tangible medium, e.g., you can’t copyright the idea for a painting, only the physical painting itself. A tangible medium for dance includes labanotation, a detailed breakdown of body movements in a choreographed work. But that process can be expensive. There’s also the option of submitting a dance that’s been recorded on video. But, in the case of music videos, that can be tricky.

A music video like “Single Ladies” was an ideal example for a copyright submission, because the routine was shown largely in its entirety with little editing or cuts. “But that’s not the way most music videos are made,” Hecht notes. “Most are like Michael Bay action movies where it’s like, one-second clip, no wide angle, tight angle, all these different angles. And you can’t see the full choreography.”

JaQuel Knight hired someone to do the labanotation for “Single Ladies,” and Hecht submitted both the final version of the music video and the studio reference copy for good measure. All of which led to Knight securing the copyright for “Single Ladies” choreography in 2020.

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Now it’s a question of bringing that momentum to social media.

Taking on TikTok

Without question, TikTok has become synonymous with dance.

It’s hard to scroll past more than a few videos in your For You page without coming across someone doing some kind of dance challenge, which, more than likely, was created by a dancer of color. What’s happened time and again has been that those BIPOC creators are not receiving their credit when their dance goes viral.

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Jalaiah Harmon was just 14 years old when she created the viral “Renegade” dance to rapper K Camp’s song “Lottery.” In an interview with Nightline last year, she expressed her mixed emotions at the time.

“I was happy that people were doing it. But I was kinda frustrated at the same time, because they weren’t really giving me my credit,” she said. “If I saw someone do the dance, I would go in the comments and say, Hey this is mine, this is my dance, but no one would believe me.”

A significant part of TikTok’s appeal—and its content—is wrapped up in remixing other people’s content. But who could blame a creator for feeling like Harmon when their work is monetized without any proper credit?

Meridith Rojas [PHoto: Courtesy of Logitech]
That sentiment was at the foundation of Black creators going on strike last summer when Megan Thee Stallion’s “Thot Shit” came out, a song ripe for a dance challenge that understandably never happened.

It’s actually what led the echnology company Logitech to reach out to JaQuel Knight.

“There was a real sense of frustration among many creators that their work was being taken and used and not credited,” says Meridith Rojas, global head of entertainment and creator marketing at Logitech. “We saw this really interesting parallel: What if we could connect the dots between what JaQuel is doing with his commercial choreography and what creators are doing?”

Last summer, Logitech and Knight helped 10 BIPOC creators secure copyrights for their choreography. Two of those creators were Shayné Abram and Zhané Miller, aka the Nae Nae Twins, who went viral in 2020 with their choreography to Megan Thee Stallion’s remix of “Savage” featuring Beyoncé. While going viral has led to working with such major brands as Nike, Amazon, Fenty, and Uber, the process of copyrighting their dance moves is offering them something deeper.

@naenaetwinsofficial

Not sure why @tiktok took this down.. #savage #savageremixchallenge #savageremix #beyhive #megtheestalllion #beyonce #dance #twins (dc: us)

♬ original sound – NaeNaeTwins

“I think it made us appreciate [dance] more,” Abram says. “Creating felt like a hobby or just something to do for fun. But now when you look at it being like copywritten, you think, ‘Oh wow, our work is being seen and it’s being acknowledged.’ It’s very motivating.”

Shayné Abram and Zhané Miller [Photo: courtesy of Bloc]
“We’re . . . making history,” adds Miller. “It’s so inspirational. For the upcoming creators, I’m sure that they see that and that’s something that they’re gonna strive to get their moves copywritten as well.”

The Nae Nae Twins are still going through the documentation process. And to be clear, their aim is to protect their work against outright commercial exploitation and not to police dance challenges. (A simple credit in the caption would be great.)

That said, they’re grateful for the momentum that this current conversation could spark for creators of color.

@naenaetwinsofficial

♬ original sound – NaeNaeTwins

“I would like Black creators to get acknowledged more, to get more opportunities for all the hard work that they put in, because it’s not easy . . . well, the ‘Savage’ remix was easy!” Miller says. “But it’s the work that it took for us to get there. You have to be persistent. You have to be committed to this.”

That’s at the root of this issue: to help creators, particularly BIPOC creators, at the very least think about owning their art in more substantial way. So much of Black culture has been appropriated for the financial benefit everyone except the creators. As Knight mentioned in 2020, it’s been a “nasty” and “dark” process, but this hard push today could mean a world of opportunities for creators tomorrow.

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About the author

KC covers entertainment and pop culture for Fast Company. Previously, KC was part of the Emmy Award-winning team at "Good Morning America," where he was the social media producer.

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