By now, you’ve probably heard the news. Epic Games, producer of the wildly popular Fortnite game, has been sued by at least three different people, for copyright infringement and right of publicity violations. Fortnite, which is a free shooter game, makes money by allowing players to buy skins, outfits and emotes, which are short little moves like this:
The items sold on Fortnite provide no competitive advantage, but a recent study showed that 69% of serious players have purchased things in the game, with the average player spending almost $85. That explains how Epic is currently earning hundreds of millions of dollars each month, for “products” that cost Epic virtually nothing to produce.
Many of the Fortnite emotes are based on popular dance moves, and so some of the people who “created” those dance moves have filed lawsuits, claiming that Epic infringed their copyright by including these dance moves in the game without their permission. (I put “created” in quotes because whether some of these people actually were the first to come up with these moves is highly debatable).
The first of these lawsuits was filed by the rapper 2 Milly over his “Swipe it” move:
This was quickly followed by a lawsuit from Alfonso Ribeiro over the inclusion of a dance he first did while on the TV show “The Fresh Prince of Bel Air” called “The Carlton Dance.”
And then a third lawsuit by Russell Horning aka The Backpack Kid, who claims that Epic stole his dance move known as Flossing (Note: although stories have said the lawsuit was filed I could not find a complaint online).
I think we can take it as a given that Fortnite did put these moves into the game because of the popularity 2 Milly, Ribeiro and the Backpack kid brought to these moves. But the question here is whether they should be able to sue for copyright infringement for the use.
As a legal matter, there are just no cases that have decided the issue over whether a dance move this short can qualify for copyright protection. Choreographed works are eligible for copyright protection, and the Copyright Office put out a circular on the issue of what is protectable and what is not. It states:
Commonplace Movements or Gestures
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.
For copyright purposes, choreographic works are a subset of dance and are not synonymous with dance. The drafters of the copyright law also made clear that choreographic works do not include social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, 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.
It is abundantly clear to me that based on these statements that the Copyright Office would not register any of these dances for copyright protection. They are both too short to qualify, and would be considered to be “social dance steps . . . intended to be performed by members of the public for the enjoyment of the dancers themselves.” Indeed, the fact that there are so many videos on YouTube of people trying to dance the Floss or Swipe It, shows that these are performed for the dancers’ enjoyment.
Moreover, I don’t think that most people rooting for the plaintiffs have thought through the serious implications of allowing dance moves this short to qualify for copyright protection. A copyright holder owns many exclusive rights, including the exclusive rights to reproduce the work, to create derivative works and the right to perform the work publicly. 17 U.S.C. Sec. 106.
If a court rules that these short dance moves are copyrightable, it would mean that no one could perform these dances in a commercial setting, or place videos of themselves doing the dance on YouTube, without risking the threat of a lawsuit for copyright infringement. I grew up watching American Bandstand and Soul Train. The dancers on the show would always try out the latest steps, and this is how (in the days before YouTube), that dance moves would spread from town to town. Starting with Chubby Checker and the Twist, and moving on to the Frug, and the Swim, and on to Van McCoy’s Hustle, the dances spread because anyone was free to use it.
If any 2-second dance move was considered copyrightable, it would destroy dance as we know it. Any Soul Train like show would have to police its dancers to make sure that none of them performed any of these now copyrightable routines. Because allowing the TV camera to show a dancer doing these moves would risk a lawsuit. And if a kid uploaded a video of himself doing the Floss, then the Backpack kid could tell YouTube to take it down for violating his exclusive rights under copyright.
I’m sure that most of you reading this have seen this YouTube video Evolution of Dance. Watch it again and ask yourself how many of the dances in this video would be protectable under the standard being asserted by 2 Milly and Ribeiro’s lawyers.
Now imagine a world where all of those dances are no longer free to use, but can only be performed by getting permission and paying the “creator.” That is the logical result of the Plaintiff’s position. So, this is not just about Fortnite and selling dances in games. This is about the future of dance.