Fortnite, Copyright, and Cultural Appropriation
Three performers have sued Epic Games, the developer of the popular videogame Fortnite, for infringing their dance moves. These lawsuits will test the utility of copyright law to address cultural appropriation.
Fortnite is a free-to-play video game available on multiple platforms. It is enormously popular, with over 200 million players; the game is so ubiquitous it occasionally even pertains to tech policy. Epic derives its revenue by selling cosmetic enhancements for players’ characters, such as costumes and dance moves called “emotes.” Although none of these enhancements are necessary for playing the game, analysts estimate that Epic derives $100 million a month from their sale.
This past summer, Chance the Rapper criticized Fortnite for basing the emotes, without compensation, on dance moves created by African-American artists. Other performers similarly challenged Fortnite, and finally Terrence “2 Milly” Ferguson sued Epic for distributing his “Milly Rock” dance without authorization. Additional suits have now been filed by actor Alfonso Ribeiro and Instagram star Russell “Backpack Kid” Horning. The three lawsuits are being handled by the same firm, Pierce Bainbridge Beck Price & Hecht LLP, and they make the same allegations—that Epic infringes the performers’ federal copyrights and state publicity rights by selling their dance moves as emotes without permission.
Copyrightability of Dance Moves
Under 17 U.S.C. § 102(a)(4), pantomimes and choreographic works are eligible for copyright protection so long as they are original works of authorship. The Compendium of U.S. Copyright Office Practices contains a detailed discussion of the standards for the copyrightability of choreographic works.
The Compendium defines choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” Choreography thus is not synonymous with dance. Rather, it is a discrete subset of dance that encompasses certain types of compositional dances. The legislative history for the 1976 Copyright Act, for example, states that “‘choreographic works’ do not include social dance steps and simple routines.” On the other hand, ballet, modern dance, and similar types of complex dances likely are copyrightable.
The Compendium explains that “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.” Similarly, 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 the routine is novel or distinctive. The Compendium observes that “the individual elements of a dance are not copyrightable for the same reason that individual words, numbers, notes, colors, or shapes are not protected by the copyright law. Individual dance steps and short dance routines are the building blocks of choreographic expression, and allowing copyright protection for these elements would impede rather than foster creative expression.” As examples, the Compendium contrasts the complex and intricate work performed by a troupe of professional dancers in a music video with a football player’s celebratory dance in the endzone, which merely consists of a few movements of the legs, shoulders, and arms. The former is a choreographic work, the latter is not.
The Compendium notes that “the dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line.” At one extreme of the continuum are ballets, modern dances, and other complex works that represent a related series of dance movements and patterns organized into a coherent compositional whole. At the other extreme of the continuum are social dances, simple routines, and other uncopyrightable movements. Many works fall somewhere in between.
The Compendium contains an extensive discussion of social dances. Social dances are intended to be performed by members of the general public for their own personal enjoyment. In contrast, choreographic works are compositions that are intended to be performed by skilled dancers, typically for the enjoyment of an audience. While social dances are generally capable of being performed by members of the public, choreographic works typically cannot. Significantly, the Compendium treats break dancing as a form of social dance. Some would consider the dances at issue here to be forms of break dancing.
The three dances meet copyright’s fixation requirement because they are fixed in videos. The plaintiffs’ first hurdle will be showing that they own a copyright in a choreographic work. The plaintiffs have recently applied to register the copyrights in their dances—registration is necessary to proceed with a copyright infringement suit. The Copyright Office may well reject the registrations, depending on its assessment of whether the dances meet the standards set forth in the Compendium. Even if the Copyright Office registers the dances, Epic can challenge the copyrightability of the dances.
Assuming that the dances are found to be copyrightable, the plaintiffs will have to show: 1) that Epic copied portions of the dances; and 2) that the portions copied contained protectable subject matter. To prove copying, the plaintiffs will have to demonstrate: 1) that Epic had access to the dances; and 2) that the dances sold in Fortnite are “substantially similar” to the plaintiffs’ dances. Because of the widespread availability of the dances on YouTube and other platforms, the plaintiffs can easily show access. Moreover, the emotes displayed in news reports on the litigation appear very similar to the segments of the dances.
The plaintiffs may have greater difficulty demonstrating that the copied elements are protectable. Even if the dances as a whole contain sufficient expression to be considered a copyrightable choreographic work, the segments Epic copied may be short enough that they would be treated as individual dance movements not entitled to copyright protection. The protectability of specific elements of a larger work is an extremely complex question, and is the central—and most controversial—issue in high profile cases such as the Blurred Lines case (discussed here), the Led Zeppelin case (discussed here), and Oracle v. Google (discussed here).
Perhaps recognizing the challenges of prevailing on the copyright claims, the plaintiffs’ lawyers included in the complaints a state law cause of action for infringement of the plaintiffs’ publicity rights. These claims will turn on whether Epic misappropriated the plaintiffs’ identity by copying their dance moves.
Ultimately, this case may be more about cultural appropriation than copyright or publicity rights infringement. The 2 Milly complaint, for example, alleges that “Epic has consistently sought to exploit African-American talent in particular in Fortnite by copying their dances and movements.” The complaint then lists some of the dances and movements of African-American performers Epic copied, including the dance from the 2004 Snoop music video “Drop It Like It’s Hot,” the dance performed by Will Smith in The Fresh Prince of Bel Air, the dance in Marlon Webb’s “Band of the Bold” video, and Donald Faison’s dance on the television show Scrubs. The Ribeiro complaint makes similar allegations. (The Backpack Kid complaint does not refer to exploitation of African-American artists, presumably because he is not African-American.) It remains to be seen whether copyright or publicity rights will be a successful means of vindicating these broader concerns about cultural appropriation.