When is Dancing not just Dancing? When Copyright and Choreography Intersect

What do TikTok, “emotes”, dance moves, “Apple,” and video games all have in common? Well, recently they were all at the centre of a very modern intellectual property (IP) dispute, involving a social media influencer and a popular online gaming platform. And, as in all IP disputes, there are lessons that can be learned, including to remind entertainment and video game companies of the importance of IP considerations when rolling out a new product, title, game, content or feature.  

As reported by the BBC, social media influencer Kelly Heyer, TikTok user and creator of a popular dance choreography set to the Charlie XCX song “Apple,” settled her dispute with Roblox, an online gaming platform, relating to Roblox’s use of the choreography in an “emote” (a celebratory animation used by players) available on its wildly popular gaming platform.   

Ms. Heyer had issued proceedings in a US court alleging that Roblox had copied her dance choreography without permission or formal agreement despite being in licensing negotiations with her. Roblox on the other hand replied that Ms. Heyer had not formally registered copyright in the choreography and that it nonetheless did have permission.  The parties then settled their dispute amicably.  

Some readers in Canada may wonder if dance moves and choreography can be the subject of copyright protection here as well. Indeed, copyright in choreography has seldom been the subject of judicial consideration here. However, the Copyright Act does explicitly include a “choreographic work” under the definition of a "dramatic work"¹. A “choreographic work “is defined as "[including] any work of choreography, whether or not it has any story line"².    

While it is clear that choreography in dance routines can be the subject of copyright protection, the scarcity of case law and judicial interpretation in Canada leaves many legal questions unanswered.  

This dispute serves as a useful reminder for entertainment companies and video game developers of the importance of pre-clearing content when rolling out a new product or content, and considering IP rights of individuals when the content is user-generated or directly inspired by third-party content. Additional vigilance and consideration are especially important in the context of emergent technology, such as generative AI, novel content distribution mediums, such as social media, and modern social trends.  

IP counsel should be engaged, where appropriate, to provide line of sight on the associated risk landscape and to consider the advisability of inbound IP licenses and other risk mitigation approaches.  

If your company needs advice and guidance on IP issues related to copyrights in digital and social media and/or user-generated content, please reach out to Robert. 

Influencer Kelley Heyer had accused the online platform of copying her (“Apple”) choreography, inspired by the Charli XCX song of the same name, without her permission. 

Charli XCX Apple dance creator settles Roblox lawsuit