This project was prepared by Mariam Zaidi and Mckenna Seebach (Listen to the album while you read our post: https://www.youtube.com/watch?v=CmGw-DBcP98!)
What is “brat”?
Charli XCX’s latest album “brat” stands entirely separate from her past albums. It was embedded into a campaign for the US presidential election and inspired a new cultural language, among many other things. While “brat” is often used as a derogatory term, defined in the Merriam-Webster dictionary as an “ill-mannered annoying child” or “ill-mannered immature person,” Charli XCX has virtually reclaimed and reformed the term, imputing it as popular slang [1]. Today, those who use virtually every social media platform will recognize the word “brat” as an adjective. Charli XCX has herself described “brat” to refer to a girl who is “messy, likes to party, and says dumb things sometimes,” but the meaning has permeated a series of contexts, including the Democratic presidential campaign [2]. Kamala Harris took advantage of this singer’s support following Charli’s tweet (or is it called an ‘X’?) stating that “kamala IS brat” [3]. Harris’ campaign account on X changed its header to sport the iconic bright green colour, matching the vibrant cover of Charli XCX’s album [4]. In addition, Harris’ campaign used Charli’s song, 365, in a campaign video posted to TikTok [4]. The proliferation of “brat” inspired us to consider how the term interacts with various intellectual property issues.
Can Charli XCX Copyright the Term “brat”?
First, we wonder, can Charli XCX claim copyright in her album’s title as a literary work? One necessary aspect of such an analysis is whether a single word can achieve copyright protection as an original literary work. Exxon Corp v Exxon Insurance Consultants International Ltd in 1981 explores this question [5]. In Exxon, the plaintiff changed its name to “Exxon” and the unrelated defendant subsequently adopted the same name. The court acknowledged that, if a word is invented, it is considered original [5]. The question then turns to whether a single word is a literary work within the section 2 of the Copyright Act [6]. At this point, the Court found the word “Exxon” did not have meaning and rather required additional context to be understood. This lack of apparent meaning precluded the existence of copyright in the word itself [5]. The Court clarified that its decision does not mean a word used as a title is never capable of being protected by copyright, but rather that the title would need characteristics which allow it to be recognized as a literary work, not just an invented word. To illustrate its point, the Court turned to the example of a poem titled “Jabberwocky”, stating that it is possible for “Jabberwocky” alone to be considered a substantial part of the poem as a whole and thus, copying it would be a copyright infringement [5]. However, the Court held that the word’s connection to the remainder of the poem is necessary to such an infringement—simply coming up with the word alone does not justify copyright protection.
Applying the Court’s analysis to the word “brat”, it is clear that the term was not invented by Charli XCX. This consideration prevents it from meeting the originality requirement, in a manner analogous to how “Exxon” did. We wonder, are there other paths to originality? Exxon does not appear to offer any. Turning to CCH v LSUC, originality in this case was said to require the exercise of skill or judgment, and excludes merely mechanical exercises [7]. It is arguable that Charli XCX used judgment to name her album “brat” over other options. Choosing an album name is not purely mechanical, the name needs to relate to the songs and the artist’s narrative in a way that will promote it and increase sales. While this argument is definitely vulnerable to a challenge that simply choosing a word for an album is not really original, we will assume this requirement is met for the sake of further analysis. Assuming the album title is original, it must be a literary work to qualify for copyright protection. The absence of meaning in the word “Exxon” itself precluded copyright from existing [5]. Does “brat” in Charli XCX’s context have meaning in and of itself, or is it reliant on its surrounding words or context? Like “Jabberwocky,” “brat” likely needs additional context, such as the songs in the album or demonstrated use in line with Charli XCX’s definition, to be recognized for the purpose of copyright protection. Without this context, it is likely not to qualify for copyright protection [5]. Trademark is very likely a better path for those seeking protection of a word.
An additional aspect of the copyright analysis is whether a title alone can be protected by copyright. In Francis, Day & Hunter Ltd v Twentieth Century Fox Corp Ltd, the plaintiffs attempted to claim copyright in a song title, namely “The Man Who Broke the Bank at Monte Carlo,” after a movie with the same title was released several decades later [8]. The Court here states the general rule that a title itself cannot be the subject of copyright [8]. The plaintiffs’ response relied heavily on the statutory definition of “work” which says that a work “shall include the title [and such] title is original and distinctive” [6]. The court does not provide an in-depth analysis of what “original and distinctive” means but explain that the definition given in the statute does not suggest the title is a separate work from the rest of the work. Instead, that work simply includes the title if it is original and distinctive [8]. In turn, copyright infringement still requires a substantial part of the rest of the work to be copied which is not met here. This finding is consistent with the statements in Exxon regarding the “Jabberwocky” poem [5].
In conclusion, while it is possible for a title to form part of the work that is copied, there seem to be very few circumstances, if any, in which a title alone can be protected by copyright. In turn, it is unlikely “brat,” as an album title alone, could be copyrighted, confirming that trademark law for protection may be a better avenue for protection. The potential trademark aspect of Charli XCX’s brat is beyond the scope of this essay, but as a general introduction to the issue, “brat” has been the subject of trademark at least three times in Canada, including for watches and clocks, vehicles, and vodka [9].
The “Apple” Dance
A related, but separate creative work that similarly inspires an intellectual property analysis is the choreography to Charli XCX’s song, Apple, created by TikTok user Kelley Heyer. Heyer’s dance, which has been embedded into the collective cultural imagination and can be memorized and performed by the least talented of dancers (I speak from experience…), has been recreated by thousands of TikTok creators to the tune of a short snippet from Apple. The dance is emblematic of a new form of creativity that has emerged on TikTok, where choreography is a common form of viral content shared across the apps’ millions of users, and often, without acknowledgement of the original choreographer.
Even before brat’s pervasive cultural impact, TikTok dances have defined much of the content created and shared on the social media app. TikTok’s diverse platform enables amateurs and professionals alike to create short and easily-learned dances that contribute to the increasing popularity of accompanying tracks and often go without credit or quickly lose connection to the original choreographer. Considering TikTok’s creator fund, which rewards TikTok users for their videos based on engagement, it is unsurprising that TikTok users who create trends, and especially dance trends, have grappled with the intellectual property issues associated with receiving credit for their creativity [10].
The cultural impact and prevalence of dances like Heyer’s raises an important question: who owns TikTok choreography, and can these dance moves be protected under copyright law in Canada? Additionally, how does a consideration about TikTok’s algorithm impact this analysis, considering it is usually responsible for bolstering the trend’s popularity? These questions have not reached Canadian courts very often, and this has left much uncertainty as to how this issue would be interpreted in light of Section 2 of the Copyright Act, which protects choreographed works under copyright law insofar as they qualify as “dramatic works” [11]. As the example of Heyer’s dance suggests, the unique format of short-form, viral dance videos obscures the traditional application of copyright protection.
An article by Gowling WLG on the issue canvases the statutory and normative definition of “choreography” in Canada. Their analysis suggests that a choreographic work would likely require a “sequence” of steps, combined to create an artistic work [12]. In order to attract copyright protection, a work must both be original and fixed. Given the lack of legal precedent on the issue of short-form dance videos, it is necessary to conduct a copyright analysis as we would for any novel claim to assess whether Heyer’s dance could be considered an original and fixed artistic work.
In London Press v. University Tutorial Press (1916), the Court confirmed that originality requires that a work must be an original expression of thought and courts should not be concerned with the actual merit of the work itself [13]. In the case of Heyer’s Apple dance, those who may argue that the dance is merely an haphazard arrangement of awkward movements rather than a dance, would likely not be successful in disproving its originality. In fact, Heyer is a frequent creator of TikTok dances, gaining traction for her choreography’s connection to song lyrics and suitability to short-form content, which users record in a variety of settings including bedrooms, public transport, and on street corners, among others.
Moreover, Heyer’s creative process sheds light on the originality of her work. In an interview, Heyer explained that she came up with the dance while looking in the mirror and wearing her pajamas, in an independent moment of creation that highlights the thought process involved in the creation of her dance [14]. Even if it is argued that the movements, which involve making a heart shaped hand over one’s head, are generic, the specific arrangement of the steps in the dance creates an artistic work. Given Heyer’s history of creating other TikTok dances and publishing other creative pieces on her page, it is clear she likely used her creativity to craft the Apple dance, ultimately, meeting the originality requirement for copyright protection.
The fixation requirement is also crucial. Under Canadian copyright law, considering the court’s decision in Canadian Admiral Corp. v. Rediffusion Inc. (1956), a creative work must be grounded in a medium that is fixed [15]. Heyer’s dance has been captured in video form and shared to TikTok, which would likely meet the fixation requirement, as the video serves as a medium through which the choreography is reproduced and shared to millions of users on the platform.
For a creator to receive copyright protection Canada, the author must have been a citizen or subject of a treaty country that is party to the Berne Convention, or meet other criteria under Section 5(1)(a), when the work was created [16]. Given that Heyer resides in New York City, she would likely meet this requirement for copyright protection. Ultimately, if Heyer so desired, she could assert her rights to the copyright in her choreography even outside of the United States.
If Heyer chose to enforce this copyright, however, she would likely face challenges. Specifically, dances are often shared on TikTok at a rapid speed, without consideration of the copyright implications. Given the lack of legal precedent of copyright claims against individual users, it is unclear whether TikTok users could effectively be held accountable for primary infringement. Primary infringement occurs where there is a violation of the copyright owner’s Section 3(1) Copyright Act rights [17]. In this case, It is likely that a variety of primary infringements occur each time a video using Heyer’s dance is posted, including that it is reproduced in whole or in substantial part, the work is performed in public, and that the work is communicated to the public by telecommunication.
Additionally, in a US based lawsuit considering Fortnite’s use of “The Carlton” dance in its game, the US copyright office explained that a “simple routine” cannot be protected by copyright. As Ali Johnson writes, this could likely be because it is difficult to prove ownership when a short dance may have been heavily inspired by previous works and reinterpreted to result in the present iteration [18].
While it is unclear if Heyer has any plans of enforcing copyright and claiming infringement for the Apple dance or any others, it is clear that many users have attempted to respect her “moral rights,” even if unaware that they were doing so. Many users choose to caption their posts recreating Heyer’s dance with “‘dc @Kelley.Heyer”, meaning “dance credits to Kelley Heyer”, to acknowledge her work. This illustrates the interesting issue of balancing legal rights of the original creator and an emerging norm of attribution and collaboration on TikTok.
[2] https://www.cbc.ca/radio/sunday/online-slang-terms-1.7287363
[3] https://www.bbc.com/news/articles/cqqlgq7k374o
[4] https://www.theguardian.com/us-news/article/2024/jul/23/kamala-harris-charli-xcx-brat
[5] Exxon Corp v Exxon Insurance Consultants International Ltd [1981] 1 WLR 624, 2 All ER 495
[6] Copyright Act, R.S.C., 1985, c. C-42.
[7] CCH Canadian Ltd. v Law Society of Upper Canada, [2004] 1 SCR 339
[8] Francis, Day & Hunter Ltd v Twentieth Century Fox Corp Ltd 1939 CanLII 276, [1940] AC 112
[9] Government of Canada, Canadian Trademarks Database
[10] https://www.backstage.com/magazine/article/tiktok-creator-fund-explained-how-to-join-75090/
[11] Copyright Act, R.S.C., 1985, c. C-42, s. 2.
[12] https://gowlingwlg.com/en-ca/insights-resources/articles/2019/copyright-protection-of-dance-moves
[13] University of London Press v. University Tutorial Press, [1916] 2 CH 601.
[14] https://embedded.substack.com/p/how-apple-dance-creator-kelley-heyer
[15] Canadian Admiral Corp. v. Rediffusion Inc., [1954] Ex. CR 382, 20 CPR 75.
[16] Copyright Act, R.S.C., 1985, c. C-42, s. 5(1).
[17] Copyright Act, R.S.C., 1985, c. C-42, s. 3(1).
[18] Ali Johnson, “Copyrighting TikTok Dances: Choreography in the Internet Age,” (2021) Washington Law Review 96:3, 1225-1274.
Copyright & Social Media
Communications Law