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Fortnite IP Royale: Can Dance Moves Be Copyrighted?

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About The Author

Ed Harris (Regular Writer)

Ed graduated from Swansea University with a first class LLB, and is soon to begin an LLM in Law and Economics at Utrecht University. His main areas of interest are within corporate finance and developments in the business world. Away from the law, Ed is a keen footballer and also enjoys racket sports.

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© Sergey Galyonkin

Intellectual Property is the oil of the 21st Century.

Mark Getty

Fortnite is undoubtedly the world’s biggest game and continues to go from strength to strength; recently reaching 200 million players less than 6 months after hitting 125 million users and securing its developers, Epic Games, a $15 billion valuation.  Since its release on 25July 2017, Fortnite has become a global phenomenon, not only disrupting the traditional video game industry but permeating throughout popular culture in general.

Yet, in recent weeks, Fortnite has become the subject of controversy over its inclusion of ‘emotes’ within the game, as many of the supposed creators of the dances used in emotes are attempting to assert their intellectual property rights over the routines. With months of posturing by potential plaintiffs finally resulting in the filing of law suits, the possibility exists for a significant legal ruling in intellectual property law. However, this article will demonstrate that, in light of the letter of the law and policy concerns, there is a clear favourite in this legal dance off.

What is an emote?

A large proportion of Fortnite’s success can be attributed to its free-to-play platform, whereby players are initially drawn in due to its accessibility without a paywall and are then convinced to spend money on in-game purchases. Among these in-game purchases are ‘emotes’ – dances within the game normally used to celebrate victory or to mock rivals.  These emotes have proved incredibly popular, contributing to the in-game purchase revenues in excess of $1 billion since the inception of the Fortnite's ‘Battle Royale’ mode in May 2018. However, these emotes have taken on a life of their own and are easily recognisable within popular culture, with the dances having been performed by prominent figures in  elite football leagues, the NBA, and Major League; perhaps peaking with Antoine Griezmann’s celebration in France’s victory over Croatia in the World Cup Final 2018.

However, many dances offered for purchase within the game are reminiscent of viral dances often emanating from hip hop culture. Examples include Snoops Dog’s steering wheel move from ‘Drop it likes its Hot’ (called “Tidy” in Fortnite), BlocBoys' “Shoot” (called Hype on Fortnite”) and Terrence '2 Milly' Ferguson’s “Milly Rock” (called “Swipe it” on Fortnite).  There has also been criticism from Alfonso Ribero (known for his role as ‘Carlton’ in the “Fresh Prince of Bel Air”) and Donald Faison (Chris Turk on “Scrubs”) regarding the alleged appropriation of their dances for use in the game.

At the time of writing, three law suits have been filed in relation to Fortnite's use of emotes in the game, with the plaintiffs being Terrence Ferguson (2 Milly), Alfonso Ribeiro (Carlton) and Anita Redd (on behalf of “Backpack kid”). These suits have all been filed in the Federal Court of Los Angeles Central District of California by the law firm Pierce Bainbridge Beck Price and Hecht LLP.

Full copies of the law suits can be read here: Terrence Ferguson, Alfonso Ribeiro, Backpack Kid.

Can a dance be copyrighted?

Given that these cases have been brought in the United States Court for the Central District of California, the relevant provisions which will ultimately determine the outcome of this case will be found under US law. The Copyright Act 1976 provides the basic framework for the application of copyright law in the United States.

In a relatively recent development the Copyright Act was amended in 1979 to include, under Section 102(4), choreography and pantomime to the list of things capable of receiving copyright protection. 'Choreography' is now defined in the Act as:

the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.

This leads to the conclusion that in certain circumstances dances are capable of being subject to copyright protection.   

Requirements for copyright protection in US law

Copyright protection extends not to mere ideas but to expression, in the same way copyright protection does not extend to functionality. Copyright protection is therefore granted to original expression that is fixed into a tangible medium.

The Copyright clause of the US Constitution has been interpreted as to require the 'minimal level of creativity' in addition to originality. Originality is the fundamental principle of copyright, demanding that the work satisfies the triumvirate of being:

  1. Original to the author;
  2. Created independently (by the author);
  3. Of at least minimal creativity.

These elements can combine a copyrightable work from something previously uncapable of copyright protection. For example, a single musical note is not capable, in itself, of being copyrighted; however, if multiple notes are arranged in a sequence into a song, it will then be capable of copyright protection. In the same way a single word if not protected by copyright, but the original arrangement of many words into a book is capable of copyright protection.  

Merits of the lawsuits

There are undoubted similarities between the dances the plaintiffs claim to own and the emotes that appear in Fortnite, as clearly demonstrated by side by side analysis of the dances by 2 Milly, Alfonso Ribeiro and the Backpack kid. They appear, in fact, to be frame by frame copies, as alleged directly by 2 Milly in his lawsuit.

However, as yet the allegation remains just an allegation, as the method by which Epic Games creates the emotes remains undisclosed. This raises an interesting and unanswered point of law: it is unclear whether, if the emote is created from copied code from an online video, this would constitute fair use of the routine (and therefore not infringe any copyright subsisting in the dances) in the sense that it was reverse engineered, or whether this would itself constitute an infringement.  

However, even if these dances are identical, the aforementioned triumvirate must be satisfied for copyright to even subsist within the dance routines; without this initial copyright, there are no rights that can be subject to infringement.

Originality

Ribeiro's claim

Arguably, at least two of the lawsuits fall at the first hurdle. Alfonso Ribeiro admitted in 2012 that he 'stole' his dance from both Courtney Cox and Eddie Murphy, combining the moves from Cox’s actions in Bruce Springsteen’s ‘Dancing in the Dark’ music video and Eddie Murphy’s ‘Dance like a white guy routine’. Although this does not eliminate his claim, it certainly weakens it as his dance routine, in and of itself, is hardly 'original'.

Backpack kid's claim

In the same sense, the Backpack kid claim will struggle to establish himself as the original owner of 'the floss', with recordings appearing online as early as 2011. He may have brought the dance in popular consciousness, in the same sense that Michael Jackson's iconic performance at Motown 25 popularised the moonwalk, but copyright protection requires originality, not popularity.

Ferguson's claim

Terrence Ferguson's claim appears stronger in this regard, with his dance, 'the Milly Rock', appearing to surface at the time of the release of the music video of ‘Milly Rock’ in 2014.  

If this was to be considered an original work, then the requirement of being “an original work in a tangible medium” would be satisfied with video recording being the preferred medium by which copyright protection may be afforded to a dance.  

Social Dance – Claim Eliminated

However, it is likely that these dances do not qualify as copyrightable dances.

The copyright protection of a dance move is a novel issue and has been seldom litigated, yet the minute existing case law favours the defendants in this case. The only precedent on this point of law, which coincidently although unsurprisingly emanates from the central district of California, originates from the case of Bikram Yoga v Evolution Yoga (2015).

The facts of this case revolve on the sequence of twenty-six yoga positions and whether or not this constituted a copyrightable choreographic work. The verdict of the court was damning, holding:

the sequence of 26 yoga poses hardly seems to fall within the definition of a pantomime or a choregraphic work because of the simplicity of the sequence and that it is not a dramatic performance.

This case was then appealed, and the ruling changed. However, it was not the verdict with which the appeal court disagreed but the reasoning, instead holding:

the sequence is not copyrightable as a choreographic work [because] it is an idea, process, or system to which copyright protection may in no case extend.

However, the strongest rebuttal to the plaintiff’s claims is contained in the exception clause of the Copyright Act 1976. Along with the Copyright Act 1976, the to clarify changes that had been made to the copyright framework. Within this report the House clarified that:

choreographic works do not include social dance steps and simple routines.

The United States Copyright office gives examples of social dances not protected by copyright, including the basic waltz, the hustle step, the grapevine and the second position in classical ballet. Uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves. Social dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.

Conclusion  

If the copyright exception in the Copyright Act 1976 is to have any meaning, the dances in the aforementioned law suits must be considered social dances. The intention of the Copyright Act 1976 is surely to distinguish a large choregraphed work such as The Nutcracker - which can last for up to two hours - from un-copyrightable social dances like the waltz, which are designed to be performed in public.

The aforementioned dances featured in Fortnite are clearly akin to a simple does like the waltz, rather than a complicated choreography such as The Nutcracker.  This is compounded by the policy consideration that copyright law should not serve the purpose of allowing threats of lawsuits to prevent members of the public performing simple dance moves. For these reasons, it is highly anticipated that those suing Fortnite will not be successful, no matter how popular moves such as 'the floss' become.

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Tagged: Commercial Law, IP, Intellectual Property

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