Dance, Dance, Litigation: The Copyrightability of Dance

Everyone’s seen them. With the massive success of Epic Games’ Fortnite, the free-to-play battle royale video game, many of the in-game dances have gained mainstream notoriety among the younger generations. In the game, players can unlock different dances, or “emotes,” for their characters either by completing various objectives within the game or by paying a fee ranging from $5 to $10. Yet, the origins of many of these popular emotes have recently created controversy. It started this past December when rapper “2 Milly” sued Epic Games over allegedly copying his viral “Milly Rock” dance. Then actor Alfonso Ribeiro, famous for his role as Carlton Banks in The Fresh Prince of Bel-Air, followed suit.

Ribeiro echoed 2 Milly’s complaint, alleging copyright infringement of his famous “Carlton Dance” from the show. Since then, Epic Games has also been sued by Rapper “BlocBoy JB,” for use of his “Shoot” dance, and by Instagram celebrity “Backpack Kid,” for use of his “Floss” dance. While the similarities between the in-game emotes and the viral dances are undeniable, the initial question is whether any of these dances are even copyrightable. By denying Ribeiro a copyright in his dance, the U.S. Copyright Office decided that their answer to this question is no.

It wasn’t until the Copyright Act of 1976 that “pantomimes and choreographic works” were expressly enumerated as copyrightable subject matter. The term “choreographic works” was not specifically defined within the Act as, according to the House and Senate reports that accompanied the Act, the term has a “fairly settled meaning.” This assumption is now being tested. However, both reports do mention that “choreographic works” do not include “social dance steps and simple routines.”

Circular 52, a publication by the U.S. Copyright Office, provides insight into the Copyright Office’s perspective on the rules governing the copyrightability of dance. Notably, the circular mentions categories of dances that are not copyrightable, including: “social dance steps and simple routines,” “individual movements or dance steps,” and “short dance routines consisting of only a few movements.” The Copyright Office, in their response to Ribeiro’s application, called Ribeiro’s three-step dance a “simple routine,” noting that evidence of original authorship of a dance move is “irrelevant” to this determination of copyrightability. In their opinion, regardless of whether Ribeiro can prove that he created the “Carlton Dance” himself, the move itself is too basic to warrant copyright protection. Given the “simple” nature of the various other dance moves at issue, this ruling by the Copyright Office is certainly a blow to the different copyright lawsuits currently being brought against Epic Games. However, a rejection by the U.S. Copyright Office is not fatal to an applicant. Under § 411 of the Copyright Act, an individual may still bring suit even if their copyright application is refused. While a rejection by the Copyright Office might be persuasive, a judge would not be bound by this determination and could take up the question of whether a valid copyright exists themselves.

Why does our system allow copyright protection for choreographic works but exclude basic dance moves? Copyright protection generally is intended to ensure adequate incentives for individuals to create. Thus, the effort put into arranging a complex choreography is rewarded with a valid copyright that excludes others from reproducing such acts (subject to certain fair use exceptions). However, keeping the dance moves that individually make up the choreography free from copyright protection and available to the public is equally important. If no line existed between copyrightable choreographic works and uncopyrightable basic dance moves, various bodily movements could slowly be copyrighted one-by-one, leaving less and less dance for the rest of us. Instead, by excluding these building blocks from the realm of copyright protection, future creators can continue to build on these moves in creating their own works without confusion and concern about litigation.

Given that Epic Games is directly profiting off of the exploitation of these viral dances to the tune of over $1 billion worth of sales according to some reports, the idea that these creators should receive some sort of compensation does have some appeal. But appeal alone has never been the bar for determining copyright protection. While the line between choreography and simple dance moves is necessary, where exactly the line should be drawn is harder to pinpoint. At what point does a simple dance routine become a choreography? Given how little case law exists on this question, the inventors of these dance moves might consider taking their cases to court to find out.

Pedraam Mirzanian is a J.D. candidate, 2020, at NYU School of Law.