Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
Not only do songwriters and artists owe the viral video app TikTok for their songs taking off, but most artists also owe their fame to Black creators for creating phenomenal dances which helped those songs to go viral.
In June 2021, the hashtag #BlackTikTokStrike started trending on multiple social media platforms and was viewed over 7.7 million times on TikTok alone. This trend started due to Black creators getting fed up with the cultural appropriation and credit given to their white counterparts. Black creators have finally spoken out about the recognition and financial gain white creators get from stealing their creations.
The strike centred initially around Megan Thee Stallion’s song, “Thot S**t.” The Texan rapper’s prior hit song, “WAP,” alongside Cardi B, has inspired over 4.6 million videos (not views) made on the app. For the release of Megan Thee Stallion’s new song, Black creators decided to hold off on creating a new dance to show artists and white creators alike how much credit Black creators deserve for their success. Today, “Thot S**t” does not have a viral dance and fewer than one million videos on TikTok include the song.
Many Other Controversies
White creators have controversially appeared in mainstream media for Black creator content many times. Nicki Minaj’s song, “Black Barbies,” went viral again to celebrate Black beauty on TikTok. However, not long after the trend emerged, many white female creators started appearing on Tik Tok’s “For You” page. Discourse now fills the song’s thread on TikTok over whether white creators are right or wrong to continue to appropriate Black culture and beauty.
Another recent controversy surrounds Addison Rae’s appearance on Jimmy Fallon’s late-night show in March 2021. The host asked the TikTok superstar to perform eight famous TikTok dances in a segment which has brought both Fallon and Rae significant backlash. The show did not credit nor mention the IBPOC creators of the dances, adding more to the conversation of white creators’ success off of Black creators’ content.
Both Fallon and Rae have now publicly addressed the backlash. Fallon apologized and admitted that the original creators deserved their spotlight. He then invited some of the creators onto the show to perform their dances. In an interview with TMZ, spanning less than two minutes, Addison Rae said she loves and respects all the creators of the dances she performed. Additionally, she stated that it is “kinda hard to credit during the show.”
What Can Black Creators Do Legally?
I recently wrote about The Hudson Bay Company using Hadiya Roderique’s photo for a charity campaign without her permission. Although this ban from Black creators is similar, TikTok guidelines and the Copyright Act of 1976 make it more difficult for these creators to exercise their rights.
Creators would have better luck with claiming copyright protection if not for Tiktok’s app design. By default, once someone uploads a dance video online, it is protected under copyright. However, it is usually hard to figure out who created the dance first and what constitutes a dance. Unlike Facebook or Twitter, TikTok does not time-stamp videos when posted, which creates more difficulty in crediting creators. The app posts videos by popularity and not in chronological order. This ordering makes it extremely hard to figure out who posted the dance first.
The Copyright Act of 1976 has adapted to protect more pieces of works over the years. It was not until 1978 that the Act allowed choreography to be copyright protected, after a twenty year revision process. Nevertheless, this amendment was for extended choreography, such as ballet routines and other dances performed in front of an audience. On the other hand, “social dances,” defined as “intended to be performed by members of the public for enjoyment of the dancers themselves,” are not protected under the Act. This definition, unfortunately, includes short TikTok dances.
Conclusion
Overall, after researching the common law of copyright protection of TikTok dances, I have found that the law seems not to protect the work of these Black creators. As the strike continues, the best thing that allies and supporters of Black creators can do is to credit the original creators of these works. Recognition for the idea and creativity and the following they deserve will make up for the financial gain these creators have lost. This can be an appropriate solution until the law can adapt to ensure Black creators can get what they rightfully deserve.
