DISCLAIMER: THIS ARTICLE IS FOR DISCUSSION PURPOSES ONLY. NONE OF THIS SHOULD BE TAKEN AS LEGAL ADVICE. IF YOU HAVE LEGAL QUESTIONS, PLEASE CONSULT AN ATTORNEY.
In current video game news, various people are suing Epic Games for using their respective dances without permission in the popular video game, Fortnite. Many have spoken out about Fortnite using their dances, but the lawsuits came to prominence when Rapper 2 Milly sued Epic Games upon discovering his dance move from his “Milly Rock” music video is being used in the game. Alfonso Ribeiro, of Fresh Prince of Bel-Air fame, filed a lawsuit in regards to the Carlton dance. Russell Horning, AKA the Backpack Kid also filed a lawsuit (specifically his mother and manager, since he is a minor) in regards to the Floss Dance.
The question on everyone’s minds is, can you copyright a dance?
The short answer is, yes, dance is copyrightable. See Copyright Act: 17 U.S.C. §102(a)(4). It says that a copyright can subsist in choreographic works and pantomimes. In this case, we are focusing on choreographic works. Registerable choreographic works are generally supposed to be executed by skilled performers in front of an audience.
“Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole…Choreography and pantomimes consisting of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection.”
Choreography as a whole is potentially copyrightable, but it is not as simple as it sounds. Some movements may lack enough authorship to qualify for copyright protection.
What are the common (key word) elements of choreography?
- Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage
- A series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole
- A story, theme, or abstract composition conveyed through movement
- A presentation before an audience
- A performance by skilled individuals
- Musical or textual accompaniment
These are only common elements, not a strict list. All of them do not need to be fulfilled in order to be copyrightable. Most, if not all of these dances were performed in a defined sequence and in a defined spatial environment, were presented before an audience, and with musical accompaniment. However, all of them do not for example create a story, theme, or abstract composition conveyed through movement.
Do these people have a case?
That depends. (Typical lawyer answer, I know.) It will be difficult to copyright these dances. There are many factors to consider. One of those factors is if the movements are considered “commonplace movements or gestures” or if the dances are distinct choreography.
“Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. The U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”
Examples of commonplace movements include the “YMCA”, because that is just people spelling out letters using their arms and bodies. Ballroom dancing (my dance forte) is considered a social dance, and has been ruled as not copyrightable, by the copyright office.
The case with the most attention is Mr. Ribeiro’s. He performed the Carlton dance as a particular character (Carlton) for a particular show (Fresh Prince of Bel-Air). There is some debate if he owns the dance, but Mr. Ribeiro is in the process of securing the rights to his respective dance. Mr. Ribeiro has filed a lawsuit against Take Two Interactive Software for using the dance in NBA 2K16.
It will take some time before there are results. Maybe all of this press for Epic Games could result in companies purchasing licenses or royalties to use dances in the future in order to avoid lawsuits. I’m interested in seeing where these lawsuits go, and if they will change copyright law for the future.