If you create choreographic dance moves, do you own the exclusive copyright of them?

If the dance moves are original works beyond basic social dancing, they are likely copyrightable. Let’s break it down.

The U.S. Copyright Act protects original works of authorship fixed in any tangible medium of expression, and a work is fixed in a tangible medium of expression when it's embodied in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

First key term – original works of authorship

What constitutes original work? The short answer is - any type of expression independently conceived by its creator can be reviewed as original. However, copyright law also recognizes compilation, meaning, the compilation itself can be copyrightable as original and independent work, while excluding the existing materials that are used as the parts of compilation. For dance moves, if the steps are simple and commonly used in social settings, they inherently lack the originality. But, if the steps are specifically crafted with some new moves to coordinate a song, likely they are copyrightable.

Second key term – fixed in a tangible medium

It is important that the original work is written down, filmed or in any other way fixed in a tangible medium. For example, if you tell an original story to others, although the story itself is original, it is not (yet) protected until it is written down or recorded via audio recording or other tangible forms. For ballet choreography, if the choreography only exists in the director’s and the dancers’ minds, it can hardly be protected by copyright laws. However, as soon as the choreography is recorded or written down, it becomes a copyrightable work.

Music License

Now you probably want to apply for a copyright registration for your choreography and viral dance moves. Can you file the application with a video recording? Yes, but you first need to clear the music used in the recording, since it is separate from your dance.

In a nutshell, you would need a proper permission to use the music so there is no risk of infringement. Then, you need to exclude the music in your registration (so that your exclusive right is over the dance itself but not the music).

There are different types of permissions for the background music. If you use music in the public domain, meaning, music created a long time ago with no apparent author, you are probably good to go. Most songs, especially the songs on TikTok, are owned by others and protected by copyright laws. For these songs, if they are distributed through royalty-free licenses, for example, through Creative Commons licenses, you are permitted to use them as long as you follow the restrictions in the licenses. If you are using music directly from TikTok, you also automatically get the licenses because the platform, TikTok, already obtained the licenses for you. In other situations, you may be allowed to use certain music for a short time under the doctrine of fair use. However, most commercial uses are hardly fair use.

If you already own a copyright, you can freely license it to others, because you have the exclusive legal right to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.

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