Can you copyright a dance? Everybody v. Fortnite

A copyright is a set of exclusive rights granted to the creator of a new creative work. Copyright law says that an author is granted a copyright to their work when the work is fixed in a tangible medium, but this language covers a number of different types of creative vocations. Sculptures, painters, and photographers are all granted a copyright when they create a new artistic work. A creator can strengthen their copyright in the United States by registering the new work with the Library of Congress, but registration is not necessary to create the copyright. A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit and create derivative works based on the original work.

United States Copyright Law provides copyright protection for pantomimes and choreographic works
created after January 1, 1978, and fixed in some tangible medium of expression. Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. Pantomime is the art of imitating, presenting, or acting out situations, characters, or events through the use of physical gestures and bodily movements. Choreography 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.

However, United States copyright law also makes it clear that choreographic works do not include social dance steps and simple routines. Choreographic works that can be copyrighted 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.

Granting copyright protection for dance moves makes sense. Ballet and other forms of entertainment are performance pieces that require artist skill to create and the creators of such performances should be compensated for their hard work. But like many other aspects of copyright law, copyright protection for choreographic works did not anticipate the complications created by computers and digital entertainment.

Epic Games is a computer game development company that has produced a popular game titled Fortnite Battle Royale. Fortnite revolves around a character controlled by the player running around and trying to defeat other player controlled characters in battle. In Fortnite a player can perform have their character perform a dance to celebrate victory. Some of the dances come free with the game, other dances must be earned or purchased. The dances in Fortnite have been designed to mimic popular dances in real life. The popularity of Fortnite has drawn the attention of the real world creators of the dances and spawned several lawsuits.

Anita Redd v. Epic Games, 2:18-cv-10444 (C.D.CA 2018), involves the dance called Flossing. The creator of the dance known as the Backpack Kid claims that Epic has unfairly profited from exploiting Backpack Kid’s protected creative expression.

Alfonso Ribeiro v. Epic Games, 2:18-cv-10412 (C.D.CA 2018), involves the Carlton Dance which was creator by the actor Alfonso Ribeiro for the popular television series The Fresh Prince of Bel Aire. Mr. Ribeiro claims Epic that capitalized on Alfonso Ribeiro’s celebrity and popularity by selling the dance he created.

Terrence Ferguson v. Epic Games, 2:18-cv-10110 (C.D.CA 2018), involves the Milly Rock, a dance created by Mr. Fergusona, a professional rapper, also known by the alter ego and stage name, “2 Milly”.

The success of these lawsuits will turn on whether these dances are considered copyrightable choreographic works or uncopyrightable social dances.

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