It’s complicated! – Fortnite dances (again!) and copyright protection for choreography around the globe

I just feel like dancing

In Fortnite, players have the option to purchase “emotes,” which are dance moves or other actions that a player’s character can perform in the game. They are usually used to express a character’s personality or emotion after completing an action. And Epic has gotten embroiled in litigation previously concerning these “emotes.” For example, one US lawsuit filed by actor Alfonso Ribeiro against Epic involved the “Carlton dance,” widely known from Ribeiro’s character in the Fresh Prince of Bel Air television show. However, because the U.S. Supreme Court recently clarified that a copyright registration must be granted or rejected before filing a lawsuit, see Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S. Ct. 881 (2019), and Ribiero’s dance move was unregistered, that suit, and the others like it, were dismissed.

Hanagami’s case - Hanagami v. Epic Games, Inc. et al., Case No. 2:22-cv-02063 (C.D. Cal., filed March 29, 2022) - is different because his routine, set to Charlie Puth’s song “How Long,” was already successfully registered with the U.S. Copyright Office prior to the suit’s filing. At 96 counts long, Hanagami’s registration covers the entire routine - while the alleged use by Epic consists of 4 beats of that routine. Hanagami’s lawyers prepared a comparison video of the routine and Fortnite’s emote, which can be viewed here.

Hanagami alleges that Fortnite’s “It’s Complicated” dance emote contains the most recognizable part of his registered choreography. The 4-count move occurs at the hook at the beginning of the chorus of the song, and it repeats several times throughout the song. Additionally, Hanagami points out that his choreography is incredibly well-known, with the video of the registered choreography receiving nearly 36 million views to date.

Can dance moves be copyrighted? An international perspective

U.S. law

The U.S. Copyright Act affords protection for “original works of authorship fixed in any tangible medium of expression” and explicitly considers “pantomimes and choreographic works” to be “works of authorship.” 17 U.S.C. § 102(a)(4). Choreography must be “fixed,” as with other tangible mediums of expression, but fixation must allow the movement to be performed in a “consistent and uniform manner,” such as through dance notation, video recording, textual descriptions, or photographs. Merely teaching the choreography, without documenting it, is not considered fixed.

Of course, not every movement is copyrightable. Common movements, such as yoga positions, exercises, and line dances are not copyrightable. The U.S. Copyright Office has provided further guidance on the types of movement that are excluded from copyright protection, such as (1) individual movements or dance steps like the hustle, basic waltz step, or grapevine; (2) short dance routines consisting of only a few steps, even if unique; (3) ordinary motor activities; (4) social dances (e.g., ballroom, square dance); and (5) athletic activities. The Copyright Office has further stated that choreographic works are “compositions that are intended to be performed by skilled dancers, typically for the enjoyment of an audience,” as opposed to social dances which are “intended to be executed by the public” itself. Compendium of U.S. Copyright Office Practices (Third Ed.) §§ 805.5(A)-(B). Much of the guidance as to the copyrightability of choreographic works derives from the Copyright Office’s interpretations, even though they do not carry the force of law, as there is minimal judicial case law or statutory guidance regarding choreographic works.

Copyright in choreography in the United States can be closely analogized to music copyright law. Copyright protection for music does not include protection of individual notes, short sequences within a larger work, or for common “themes” such as a bass drop in an electronic dance song. Similarly, copyright protection cannot extend to individual steps, short series of movements, or “themes” such as the electric slide or “raising the roof.”

Asia

In Asia, choreography is generally protected by copyright. In contrast, mere ideas, style or technique are not. Here are some examples for illustration:

In Hong Kong, the Copyright Ordinance affords copyright protection to dramatic works, defined to include a work of dance or mime. For copyright to subsist, the dramatic work must (1) be original, (2) be recorded in writing or otherwise, and (3) have been created by an author or published in Hong Kong or elsewhere.  For a dance choreography specifically, the work must also be capable of being danced.  Interestingly, in a UK case – and the influence of UK court decisions remains strong in Hong Kong - Norowzian v Arks Ltd (No 2) [1999] EWCA Civ 3014, a dance routine was a result of the drastic editing process of the recording: The dance portrayed was no longer capable of being performed  by anyone - accordingly, there was no copyright in the underlying choreography itself, but only in the resulting film as a piece of dramatic work.

Copyright Law in China also expressly protects artistic works such as a dance, if they are formed by intellect, are original and can be expressed in a certain way. Choreographies are similarly protected as theatrical works in South Korea. In Singapore, dramatic works include choreographic scripts for shows or dance routines. However, Singapore recently revised its Copyright Act – under the current law, if a work of dance or mime has been created before 21 November 2021, it has to be described in writing in the form in which the show is to be presented in order to enjoy copyright protection as a dramatic work.

Europe

Copyright protection in Europe is based on numerous directives and is shaped by the case law of the Court of Justice of the European Union (CJEU). While each member state has its own copyright law, these national regimes must respect and be consistent with the rules at European level, and we are seeing progressive harmonization of Union law for copyright.

EU harmonized copyright law affords protection for works of the author’s "own intellectual creation", a standard also referred to as originality. Protection arises from the moment of creation, without the need for registration. Choreographic works are explicitly acknowledged as protected works under Art. 2 of the Berne Convention, as well as under some national laws, such as Sec. 2 para 1 no. 3 of the German Copyright Law. But there is no uniform answer as to how far this protection extends. The CJEU as highest instance for the interpretation of EU law has not yet had to address this question. What is clear is that not every movement is protectable under copyright. At the same time, it is possible that even single dance moves could be protected. A certain level of creativity is required, and the requisite level of creation depends on whether the author has made free decisions within a creative scope in which its personality is expressed.

At the same time, certain differences at national level exist. In Germany, for instance, the protectability of choreographies does not depend on "fixation", and improvised and spontaneous choreographic works, such as a flash mob, are equally protectable. Meanwhile, under French law, a "fixation" is necessary pursuant to Art. L. 112-2 al. 4 Code de la propriété intellectuelle (CPI). Ultimately, the assessment remains subject to individual case-by-case decisions by the national courts until we will eventually see guidance by the CJEU in a preliminary ruling.

Outlook

If Hanagami’s lawsuit progresses and Hanagami ultimately prevails on his claims, this could substantially affect video game creators and their ability to draw from real-life inspiration to create content that appeals to popular trends and audience interest. At the same time, it would develop US case law supporting the rights of choreographers to protect their valuable works. At the same time, a US decision may well inform and shape the perception of copyright protectability in other parts of the world.

Authored by Anthonia Ghalamkarizadeh, Eugene Low, Anna Kurian Shaw, Brendan C. Quinn, Hadley Dreibelbis, Charmaine Kwong, and Fabian Stocks.