Wait, Are Dances Copyrightable?
December 20, 2018 – Alec Blalock
You may have seen in the news that many people from music artist 2 Milly, the backpack kid dancer, and even Carlton from Fresh Prince (yes really) is suing the current biggest game in the world, Fortnite, over the use of their iconic dance moves. For those that didn’t know, Fortnite sells emotes (character animations like dance moves) that you character can do in game. This isn’t a new thing. Destiny has put in similar dances (including the Carlton) as well as other games and MMOs. The likelihood that this is happening now is that Fornite is the biggest thing right now, and they make A LOT of money off these emotes. But this begs the question, are dance moves even copyrightable? Short answer is yes, with a ton of caveats.
Now this is not to mean all dances are copyrightable. In fact, most probably aren’t. While all it takes to become copyrighted it to be an original expression fixed in some tangible form (YouTube videos count), the copyright act only covers choreography and pantomime when it comes to dancing. Ok, well then what counts as choreography and pantomime? Common elements that are found in legally defined choreography and pantomimes are:
- Rhythmic movements in a defined sequence and defined space (like street, stage, or arena)
- 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
- Presented before an audience
- Performed by skilled individuals
- Accompanied by music or text
It’s important to note that the inclusion or absence of any one of these elements is not a determinative factor altogether.
So, does this mean that the Milly Rock, the floss, and the Carlton qualify? Maybe, but it’s quite another thing to suggest they were infringed. This is because the courts have said that choreography doesn’t extend to “social dance steps and simple routines.” This means things like ballet, the waltz, and folk dance are not protectable. Likewise, the Milly Rock, Floss, and the Carlton are likely to face a situation where the courts will say that the moves are too simple (each dance consists of simple arm movements and minimal steps) to be considered protected.
Now each case brought against Fortnite has also brought a claim of breach of their publicity rights (something California takes a bit more seriously) because the inclusion of their likeness through their dance seems to say they endorse the product. This is a much stronger claim, and I honestly couldn’t tell you how it’ll turn out. My gut tells me the artists may succeed on that claim due to the sheer vast amounts of money Fortnite is raking in off these Battle Passes, which include the emotes, but Epic, the studio behind Fortnite, has seemingly just as good of arguments in their favor. But in terms of whether the artists will succeed on their copyright claims, I would say it’s highly unlikely.