By Jaia A. Thomas
My first encounter with the NaeNae was on Instagram. A high school classmate posted an Instagram video of her wobbling through the house waving her hands through the air and tagged it #thenaenae. I thought, “Who, what and where is a NaeNae?”
As per usual, I was late to the latest teen trend. As We Are Toonz so aptly states in their “Drop That NaeNae” song “NaeNae that’s the new thing poppin.”
The NaeNae is the brainchild of We Are Toonz, a teen quintet (Calvin Lamar Glass Jr, Jalen Ware, Kavin Bing-Gardner, Christopher Major, and Tavin Bing-Gardner) hailing from Georgia and Florida. The dance is loosely based on Martin Lawrence’s Sheneneh Jenkins character from the 90’s sitcom Martin. Group member Calvin Lamar Glass Jr – aka Callamar – explains, “It’s really just based on a ratchet girl in the club dancing kind of funny and the best girl to describe it is Sheneneh from Martin.” Since its debut, The NaeNae music video has garnered over 6 million views on YouTube and everyone from Dwight Howard to John Wall has shared their renditions of the dance. But, who legally owns the NaeNae? And, are dance routines protectable under the law?
Under the 1976 Copyright Act, “choreographic works” are eligible for copyright protection. Dance pieces are protectable by copyright provided that they are a). original works of authorship and b). fixed in any tangible medium of expression. Dance pieces can be fixed in a tangible medium of expression through film, videotape or any other notational system. While “choreographic works” is not clearly defined in the Copyright Act, many courts have precluded “social dance steps and simple routines” from copyright protection. Would the NaeNae qualify as a social dance step and simple routine disqualifying it from copyright protection?
Whether the NaeNae consists of social dance steps and simple routines is debatable. But, as of today, the NaeNae dance is not registered with the US Copyright Office. However, there is a NaeNae Bop and NaeNae Bop, et al registered under Keirra White. She is listed as the director, editor and producer for a NaeNae Bop motion picture as well as the author of NaeNae lyrics and sound recordings. It is unclear if Ms. White is of any relation or affiliation to the group but there are no registrations on record with the Copyright Office for the “NaeNae” dance itself. Note, however, that copyright exists the moment a work is created. Registration only provides additional layers of protection and allows a plaintiff to bring a copyright infringement lawsuit. So, although the dance has yet to be registered, the group and especially the dance’s creator, group member Tavin Bing-Gardner (aka Levi – pictured, far right), legally owns the rights to the dance.
As We Are Toonz prepares for their upcoming tour, copyright law may be the furthest thing from their mind. But, for other artists with a knack for choreography, it is important to know that dance routes are protectable under US Copyright Law. Countless individuals, artists and professional organizations have registered dance routines with the US Copyright Office and sued for infringement.
Jaia Thomas is a Los Angeles-based sports and entertainment attorney. For more information: www.jathomaslaw.com or @jaiathomaslaw.com