The suits, filed in the Central District of California, allege that the plaintiffs’ choreography was infringed in Fortnite by defendant Epic Games. The cases have received substantial media attention owing to not only the fame of the plaintiffs and the incredible popularity and success of Fortnite but also the dramatic implications that would result from a finding of infringement.
Fortnite is a last-player-standing arena game in which players use avatars to explore an online map and battle other players’ avatars. Fortnite has over 200 million players globally. It is reported to have generated $3 billion in profits for Epic in 2018, and Epic’s valuation has reportedly grown from approximately $1 billion to $15 billion owing largely to Fortnite’s success. This is all in spite of the fact that the game is free to play. Rather, Fortnite generates income for Epic through in-game sales. Pertinent here, players’ avatars can be customized through an in-game purchase from Epic labeled an “emote,” which costs about $8 each and enables avatars to perform simple dance routines.
Plaintiffs include musician 2 Milly, who alleges that Fortnite’s “Swipe” emote infringes his choreography; Russell Horning, who claims to hold a copyright infringed by Fortnite’s “Floss” emote; musician BlocBoy JB, who claims the Fortnite emote “Hype” infringes his “Shoot” dance; two former University of Maryland basketball players who allege that Fortnite’s “Running Man” emote infringes their choreography; and “Orange Shirt Kid,” who submitted a dance video as part of Epic’s BoogieDown contest, which Epic sells as the popular emote “Orange Justice.” Perhaps the highest-profile lawsuit was filed by Alfonso Ribeiro, famous for his role as Carlton Banks on the popular sitcom The Fresh Prince of Bel-Air. For $8, a Fortnite user can purchase the “Fresh” emote and equip his or her avatar to bust out a series of moves Ribeiro first performed in 1991 on the “Will’s Christmas Show” episode of The Fresh Prince.
With respect to the copying element of copyright infringement, the lawsuits asserted that Epic copied the dances by “copying and coding dances and movements directly from popular videos, movies, and television shows without consent . . . by coding still frames of the source material.” The lawsuits also allege secondary liability for infringement by Epic’s “players, designers, suppliers, distributors, resellers, software developers, and repair providers,” because it “induces others and/or contributes to their performance and false attribution of [the dances].”
These cases raise a largely unexplored question in copyright law: To what degree does the Copyright Act’s protection of choreographic works and pantomime extend to popular dance moves or other recorded body movements? Prior to 1978, a dance could be registered with the Copyright Office only as a “dramatic work,” requiring a dramatic narrative. In the 1976 Copyright Act, Congress added protection for a new category of “choreographic work,” which could present abstract expression. 17 U.S.C. § 102(a)(4). What does or what does not qualify as a “choreographic work” under section 102 is still largely undefined.
In September 2017, the Copyright Office issued a circular providing guidance to rights holders by synthesizing precedent and legislative history in this area. The circular explained that “[c]horeography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and warned that “[c]horeography 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.”
The circular went on to identify the basic waltz step, the hustle step, the grapevine, and the second position in classical ballet as examples of “individual movements” that are not copyrightable. It warned that “[t]he 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.” Likewise, “[s]ocial dances [and] simple routines . . . cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.” And a collection of these unprotectable bodily movements will not be registrable as a compilation unless “the author’s selection, coordination, or arrangement of steps or movements [] result[s] in an expressive compositional whole that constitutes copyrightable subject matter under the Copyright Act.”
Would-be applicants therefore should not attempt to obtain protection for “yoga positions”; “[a] set of movements whereby a group of people spell out letters with their arms”; “[a] celebratory end zone dance move or athletic victory gesture”; “[g]eneral exercise routines”; “a new tennis swing, a golf swing, or a unique slam-dunk maneuver”; “[f]eats of physical skill or dexterity”; “[s]kateboarding or snowboarding tricks”; or ballroom, folk, line, square, or swing dances or an unoriginal arrangement of them. Rather, “[r]egistrable choreographic works are typically intended to be executed by skilled performers before an audience” and a dance must be substantially developed to warrant protection as a “choreographic work.”
In its motion to dismiss one of the entertainers’ copyright claims filed in 2019, Epic focused on this difference between protectable choreography and the popular dance moves the plaintiff sought to protect, arguing that “[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.” Epic’s brief noted that “Congress was explicit that ‘simple routines’ are neither choreographic works nor copyrightable, H.R. Rep. 94-1476, at 53,” and cited the Compendium of U.S. Copyright Office Practices, which sets forth one example of copyrightable choreography as a “complex and intricate work performed by a troupe of professional dancers.” Epic referred the court to an instance where the “Copyright Office refused registration of a dance routine by world-renowned modern dance company Pilobolus titled ‘Five-Petal Flower,’” because it found that the proposed choreography consisted of “simple movements” that were “insufficient to enable copyright registration.” Epic also relied on Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015), which held that a series of 26 yoga poses did not qualify for protection.
Before the federal court in California could decide Epic’s motion, however, Epic discovered that the Copyright Office had rejected several of the plaintiffs’ applications for copyright protection of the dances, which had been filed shortly before the lawsuits themselves. One communication from the Copyright Office explained that the deposit copy for 2 Milly’s dance called the Milly Rock “depict[s] a simple routine made up of social dance steps and do[es] not represent an integrated, coherent and expressive compositional whole and is thus not eligible for copyright registration” while “[c]horeographic works are typically performed by skilled dancers for an audience. By contrast, social dances . . . are not created for professional dancers.”
Similarly, with respect to Ribeiro’s application for what has popularly become known as the Carlton, the Copyright Office explained that “the term ‘choreography’ is not synonymous with ‘dance,’” concluding that “the work submitted for registration is a simple dance routine, [which] is not registrable as a choreographic work.” Notably, Ribeiro had publicly admitted that the Carlton was derived from a dance performed by “Courtney Cox [in] the ‘Dancing In The Dark’ video with Bruce Springsteen [and] Eddie Murphy’s white man dance in the Delirious video.” The Copyright Office may have been referencing this admission where it advised Ribeiro that “the Office cannot register derivative social dances or derivative simple dance routines. A dance that is merely an adaptation of a social dance or simple routine is also considered a social dance or simple routine that does not qualify as a choreographic work. . . .”
Following this rejection from the Copyright Office and a May 4, 2019, decision by the Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S. Ct. 881 (2019), holding that registration from the Copyright Office must be obtained before filing suit, the plaintiffs withdrew their cases. However, they can still pursue their claims, as section 411(a) of the Copyright Act provides that “where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.” If the claims are re-filed, the court will make its own determination of whether the subject dances are sufficiently developed to constitute protectable choreographic works.
It remains to be seen what level of success these claims will meet if and when they are re-filed. Although Epic appears prepared to fight them, it was reported last year to have settled a potential claim over Fortnite’s “Electro Shuffle” emote by dancer Gabby David. For now, it seems the dances that are the subject of these claims may not rise to the level of original choreographic expression that the copyright law protects. Nevertheless, content creators may want to think twice before employing a highly recognizable dance in their fixed works, lest they find themselves embroiled in public and potentially costly litigation.
