Safety Dance: Copyright and Advertising Guidance for Viral Dance Trends

Arent Fox
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Arent Fox

The rise of short-form content, and the platforms that host it, has brought with it a range of marketing and advertising opportunities for brands, artists, and companies alike. On the other hand, it has also led to a variety of legal issues, including exposure for copyright infringement and advertising claims.
 

Amongst these issues are those spurred on by viral dance challenges which require unique consideration if a company desires to participate in or organize one themselves for promotional purposes.

Considerations for Organizing and Participating in Viral Dance Challenges

Given the value in keeping up with contemporary trends and the quick-paced, transient nature of viral dance challenges, in particular, brands and companies may wish to participate in and/or organize a challenge. However, there are a few key considerations to keep in mind before your employees put on their dancing shoes.

  • If participating in or organizing a viral dance challenge, consider whether there are copyrights in the chosen music.

    Copyright owners have asserted their rights against participants in viral dance challenges no matter the altruistic nature or mission of the participant. For example, Warner Music sent a series of demand letters to various participants, including hospitals, in the 2020 “#JerusalemaChallenge,” asserting their rights in the song, Jerusalema, and stating that if the participants “use the song to promote themselves, they should, in [Warner Music’s] opinion, secure a synchronization license.” Failure to secure such licenses can result in a demand for monetary compensation.   
     

  • If participating in or organizing a viral dance challenge, consider whether there are copyrights in the dance moves or routines.

    While less common, owners of copyrights in dance moves or routines may assert their rights against participants in dance challenges coopting the copyrighted choreography. For example, in 2019, hip-hop artists 2 Milly and BlocBoy JB brought a copyright infringement claim against Fortnight video game creators, Epic Games, over the game’s alleged misappropriation of the artists’ “Milly Rock” dance.  
     

  • If participating in or organizing a viral dance challenge, consider whether there are applicable advertising or marketing regulations.

    Some viral dance challenges are used in conjunction with an advertising campaign for a particular product or service and may be considered advertisements in and of themselves. As such, participants and organizers of such challenges should ensure that the challenges adhere to applicable advertising and marketing regulations, including, for example, disclosure and claim substantiation requirements. Both the Federal Trade Commission and the National Advertising Division have recently signaled their intent to more closely monitoring social media advertisements, including short videos, for compliance with these regulations.
     

  • If using your own protected intellectual property in a viral dance challenge, consider the potential for dilution of these rights.

    Popular viral dance challenges can reach millions of consumers across the globe. Often, this is what makes participation and/or organization of these challenges so appealing. However, for the same reason, it is important to consider that the inclusion of one’s intellectual property, such as a song or trademark, in a viral dance challenge may ultimately weaken its protection as the underlying IP gets exponentially appropriated, or misappropriated, on a global scale.
     

  • If your protected intellectual property is being used in a viral dance challenge, consider the potential PR implications in enforcing your rights.

    While intellectual property owners have an obligation to protect their IP rights, it is important to consider the potential PR implications of enforcing ones’ IP rights against participants in viral dance challenges. Often these challenges serve as a means of community-building and/or a respite from the troubles of daily life, especially during the Covid-19 pandemic. Companies who aggressively enforce their IP rights against participants in these challenges risk being perceived as killjoys or as removed from their consumer bases.

In sum, while viral dance challenges may seem like innocuous trends, companies and brands should carefully consider the potential legal risks before organizing or participating in these challenges.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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