Copyright is key to empower black creators and protect against digital blackface

Last month, Black creators across TikTok started the #BlackTikTokStrike, protesting what many would describe as the cultural misappropriation of Black art by white social media influencers. Specifically, Black dancers and choreographers participating in the strike are opting not to create and post choreography on the platform in response to wholesale copying of those dances, without permission, attribution, or compensation. This narrative—the exploitation and erasure of Black creators, and whitewashing of Black cultural output—is not a new one. And it is as much a relevant social justice issue as anything else that further exploits and marginalizes communities that are already at a significant disadvantage. Cultural misappropriation is an ethical concern that is not always rooted in the law, but in some instances, these ethical concerns overlap with the law in such a way that makes the offense not only morally wrong, but illegal. That is the situation Black creators on TikTok are being confronted with: misappropriation of culturally relevant dances that may also be copyright infringement. But many of these young creators don’t seem to realize that choreography—like music, books, movies, drawings, etc.—is intellectual property. Protection of choreography has been a facet of U.S. copyright law since the 1909 Act (although it wasn’t until the 1976 Act that choreography was expressly recognized as its own category of copyrightable expression).” In granting protection to choreography, Congress extended protection to “those more intricate dances, such as ballets, devised for execution by skilled performers for the enjoyment of an audience” but not to simple dance steps, “such as the steps of a ballroom or other social dance, devised primarily for the enjoyment of the dancers themselves.” While important, this distinction may be both unclear and unhelpful to Black choreographers who—against the backdrop of Black culture, where performative dance is a deeply ingrained social and spiritual expression once key to our very survival in America—create intricate sequences that require a level of skill (certainly more skill than a waltz) and are clearly devised for enjoyment by an audience, but that are also inherently social. In Black culture, a dance being socialized does not necessarily detract from its intricacy, the level of creativity required to create it, or the fact that it is also created to be performed by skilled dancers before an audience. Often, all of those are true at once. The dances that go viral on TikTok are a perfect example. So, the #BlackTikTokStrike is not about preventing TikTok users from learning and performing popular choreograpxhy in social settings. In fact, that’s probably the last thing any of these creators want. Many of them make significant investments on the frontend in hopes that their content will go viral, some even moving into collab houses where they live and create social media content fulltime in collaboration with other housemates. This strike is about the exploitation of Black labor and Black creativity. It’s about digital Blackface. It’s about Black creators having to raise this issue again and again in different contexts. It’s about the fact that Black creators have made significant contributions to American culture and creativity, yet continue to be excluded when it comes time to reap the benefits of those contributions. For example, earlier this year, The Tonight Show Starring Jimmy Fallon received backlash after inviting TikTok influencer Addison Rae Easterling to perform a series of viral TikTok dances on the show. Many of the dances were the work of Black creators, but they were not featured, credited or compensated. Easterling’s reported net worth is $5 million. In another instance, an influencer named Charli D’Amelio “became popular for her dancing and choreography, most notably to the song ‘Renegade.’”She became so popular, in fact, that she is ranked as the no. 1 influencer on TikTok, and has reportedly amassed $4 million since joining the platform just two years ago. The problem? D’Amelio is not the choreographer of the Renegade dance, and for a long time, the actual choreographer, a Black girl named Jalaiah Harmon, received zero recognition or credit, much less compensation (for comparison’s sake, Harmon’s estimated net worth today is between $60,000 and $100,000). It’s a tale we’ve heard a million times: white creators with large followings perform and “popularize” (read: whitewash) the work of Black creators, and in turn reap all of the benefits. And while credit and attribution are important, copyright law empowers many of these creators to demand more in exchange for their work. In fact, it’s time that Black creators demand more, and that is what the #BlackTikTokStrike is all about—Black creators recognizing the value of their work and refusing to be exploited. …[Cut last section]