Wait, Are Dances Copyrightable?

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.

Your Memes May Soon Disappear

I spoken at length many times about copyright law, and I just wanted to take some time to explain some things happening right now overseas that could have massive ramifications here in the states that, if you run a business and have a presence online, use memes, or just even enjoy online videos, could affect you. If you’re reading this, chances are you live in the United States and haven’t heard of the EU’s proposed Article 13 that’s coming close to being law all across Europe (even in the UK despite the whole Brexit thing). So, this is meant to break down what exactly Article 13 is, why it’s happening, and how it could affect you.

What’s Article 13?

Article 13 is a proposed EU directive that if passed, would be a new copyright directive to companies, specifically giants like YouTube and Facebook, to do as much as they can to stop the spread of copyrighted materials on their platforms.

Doesn’t something like that already exist?

Yes and no. Copyright infringement exists and has absolutely been a thing, but with the rise of the digital age, copyright infringement and piracy has been made easier and more accessible. This is meant to catch European copyright law up to the modern age.

So, what’s the difference?

Basically, before we put it on the copyright holders to enforce the rules themselves, by suing copyright infringers. Article 13 would shift that burden onto the platform holders like Facebook and YouTube. The platform holder would essentially be responsible for their users copyright infringement.

How do platform holders currently handle their users committing copyright infringement?

In the US there is a substantial piece of legislation called the Digital Millennium Copyright Act (DMCA). Due to the sheer vast amount of people using the internet, the US currently recognizes that platform holders cannot possibly screen all content posted on their platforms and understand that some users may commit copyright infringement. However, platform holders must comply with copyright holders in removing content that infringes on their copyright. Ever hear of a DMCA takedown? YouTube also uses things like content ID or copyright strikes to be DMCA compliant. Under the DMCA, platform holders cannot be held liable but must assist in taking down copyright infringement. This is called the DCMA Safe Harbor provision. The EU currently has no safe harbor provision nor does it have any major copyright legislation in the modern era. However, platform holders hosted in Europe still follow the DMCA since major tech companies that span every modern nation tend to follow the most stringent laws just to be safe.

So, what’s the big deal?

Well the big deal is that companies would have to alter their business drastically, and the language of the law. Under the DMCA, all content can technically appear on all platforms, with those that copyright infringes being taken down after the fact. Under Article 13, the copyrighted material should, theoretically, never be uploaded in the first place. The most troubling language of Article 13 reads as, “online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorized protected works or other subject matter are not available on their services.” That’s pretty vague as to what that actually means. Specifically, no one knows how platforms are expected to remove the content. The common idea being thrown around, having even appeared in early drafts of Article 13, would be to have these platforms use automatic filtering systems that would scan everything that’s submitted to be uploaded on the platform. Generally, because since Facebook and YouTube have millions of users, an automated system would feasibly be the only solution to comply with Article 13.  That’s not only a huge undertaking it’s also potentially a costly one and could put some content creators out of a job.

How could this put people out of a job?

Believe it or not there are many people that make a living online, whether it’s streaming themselves playing Fortnite on Twitch or making videos on YouTube, and many of them use copyrighted images or video clips in their streams or videos. Article 13 has earned an infamous nickname of “meme ban”, because although memes are generally agreed to be parody (which would be protected by copyright law), an automated system likely could not make that distinction. Likewise, with content creators using video clips or GIFs they rely on the fair use, which states that there are certain uses (educational or criticism for example) of copyrighted material that do not require permission from the copyright holder. However, since fair use is a defense and taken on a case by case basis, an automated system cannot distinguish what is and isn’t fair use. This means, if Article 13 were to pass, many YouTubers and other content creators on other platforms couldn’t show their stuff in Europe.

How can this affect me in the US?

Remember when I said that large tech companies tend to follow the most stringent laws universally? Remember when late last year and early this year you were flooded with emails from every website you have an account with saying they had updated their privacy policy? That was due to an EU regulation on data protection called the General Data Protection Regulation (GDPR). It doesn’t technically apply to the US, but companies in the US like Facebook and YouTube still apply it here because it’s safer for them to do so. This doesn’t necessarily mean that Article 13 will ban memes in the US. YouTube CEO Susan Wojcicki stated that they would likely have to put a theoretical bubble around Europe to prevent content from flowing in, which is how I personally would imagine this being implemented. But that does mean that if any of your content would run afoul of their automated system, it would not be viewable in Europe.

Anything else we should know about?

Yes, along with Article 13 there is also other proposed legislation on the floor of the EU. Article 11 has been lovingly called the “link tax” which states that publications “may obtain fair and proportionate renumeration for the digital use of their press publications by information society providers.” Again, wonderfully vague language and no one really knows how this would work either, but basically posting a link to a press article would mean you have to pay them for it. There are exemptions for personal and non-commercial use, but no one knows where the line is drawn. For example, would Wendy’s have to pay for posting a link on their Twitter page? What about a private person with a larger following than Wendy’s? But if you have a company or business that may be subject to these laws, you need someone who’s up to date with the ever-changing laws on internet regulation. An attorney can help guide you through the wilderness and help you do what you need to do to keep running.

What’s in a Name? A Potential Lawsuit

There were, at one time, two different Burger Kings in Illinois. The one we all know today started in Florida in 1953. The first one in Illinois opened in Skokie just north of Chicago in 1961. Likewise, in 1957 in a little town called Mattoon, IL, located in south-central Illinois, a small ice cream shop opened up a different Burger King. Neither were affiliated with one another and neither had any actual knowledge about each other. The two wouldn’t come to blows until 1962 when the big Burger King opened a restaurant in Champaign and the little Burger King opened a restaurant in Charleston. The small Burger King then sued the big Burger King under Illinois state law to restrain the big Burger King from using the name in Illinois.

The little Burger King had claim to the mark under state law and were registered under the State trademark registry in 1959. The big Burger King had a federal trademark that was issued in 1961. Looking at the world today and seeing Burger Kings everywhere, clearly you already know the big Burger King won this battle. But why? After all, the little Burger King filed for a trademark first, and existed in Illinois first, why didn’t the courts kick out the big Burger King? Well, it’s because the big Burger King had filed for their trademark federally. The courts found that a federal registration is prima facie evidence (evidence that’s accepted as the truth) of ownership over a trademark. Likewise, the courts held that the federal mark is superior to the state mark. Therefore, except in Mattoon, the big Burger King had exclusive rights to the name nation-wide including Illinois. Thus, by suing the big Burger King, the little Burger King ended up losing the second store in Charleston, forever stuck in Mattoon.

What could have the little Burger King done? First and foremost, the courts said they didn’t use their mark throughout the state. The little Burger King never tried to open a second store until after the big Burger King filed their federal trademark. Had the little Burger King opened some more stores earlier, the big Burger King may not have been able to receive a federally protected trademark or would have been forced out of the state. Secondly, the little Burger King probably should have filed a federal trademark rather than state as the state trademark does not offer much protection as you can clearly see. But really, they should’ve sought an attorney to help guide them through this kind of stuff. Business lawyers know what pitfalls to look for when you’re starting a new business or expanding it and can help prevent you from being stuck in your own Mattoon. If you have questions about your business the smartest thing you can do is seek an attorney today.