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Can You Really Sue Fortnite for ‘Stealing’ Your Dance Moves?

The answer is yes. Kind of. It’s complicated.

Imagine it is 2014 and you are the rapper 2 Milly. You have just created a new dance for your music video Milly Rock, and it has proved wildly popular. Four years later, an extremely similar dance crops up in a globally successful video game with more than 200 million players. What do you do? What can you do?

The answer, of course, is sue. And that’s exactly what 2 Milly, real name Terrence Ferguson, has done, alleging copyright infringement, having swiftly registered the Milly Rock dance with the US Copyright Office.

This happened two weeks ago and since then, two more complainants have come forward, accusing Fortnite developer Epic Games of using their moves without permission. Fresh Prince of Bel-Air star Alfonso Ribeiro alleges that Fornite used his Carlton Dance, devised for a memorable episode of the hit US sitcom, without permission or credit. And earlier this week, Russell Horning,AKA the Backpack Kid, launched his own lawsuit claiming Epic breached copyright laws for including his signature dance move “The Floss”.

So while the copyright disco fills up and solicitors perform their (wallet) stretching exercises, the big question is: can you realistically copyright a dance move?

The answer is yes. Kind of. It’s complicated.

“A dance can be protected under copyright law in England under the protection afforded to literary, dramatic or musical works (section 3 (2) of the Copyright, Design and Patents Act),” says Alex Tutty of specialist entertainment law firm Sheridans. “But copyright can subsist in it only when it is recorded in writing or otherwise. It doesn’t just exist because you did the dance; it needs to be written down or filmed.”

This is handy for the Fortnite complainants, because there is video evidence of all of them performing their respective moves. However, it’s not quite that easy. “There are all kinds of complexities in practice,” says entertainment and tech industry lawyer, Jas Purewal of Purewal & Partners. “For example, who owns the dance – the original creator, the dancers or the choreographer? How can they prove they actually created something new? How can they show that someone else actually infringed their dance and didn’t independently come up with it? The law is pretty archaic, too. It’s just not been an area that has had a lot of attention.”

There may also be question marks over the definition of choreography in this instance. In US law, choreography is protected under the 1976 Copyright Act, but this has a range of stipulations. The law differentiates between social dances, which everyone can perform, and choreography performed by experts. This means that no one can pop in and copyright the conga. So if Epic can claim these are social dances, it may tap dance out of court with its billions of dollars of revenue intact.

The length of routines is also important. A post on Boston law firm Foley Hoag’s Trademark and Copyright Law blog states:

“Much like words and short phrases (which generally are not subject to copyright protection), de minimus discrete dance steps cannot be registered for copyright protection. For instance, even though a complex choreographic work incorporating the moonwalk or a ballet plié may be registered, these individual moves may not be registered. Why? Allowing these building blocks to be protected could chill creativity and innovation.

“Likewise, simple routines are also not considered to be works of original creative authorship. So while those simple and short end zone dances may contain some elements of copyrightability, in that they communicate a theme or concept to an audience on a type of stage, they may nevertheless not be sufficiently complex to be registered.”

This is highly relevant here because Fortnite uses very brief sequences of repeated dance moves, which players can perform during a game to celebrate cool plays or mock other players. And, as only small sections are performed, they may well sashay short of US legal requirements.

That’s exactly how Epic Games is likely to fight any of these suits if they make it to court. “If you were defending such a claim you’d point out all the difficulties in that claim,” says Purewal. “There might also be an argument in the US about freedom of expression, which a number of video games publishers have relied on in previous cases where they were defending their games against claims they featured likenesses without authorisation – for example, EA with the John Madden series and Activision with the No Doubt/Guitar Hero case. But that’s rapidly become a bit of a grey area in the US and anyway it wouldn’t apply in much of the rest of the world, including the UK.”

Ultimately, it is difficult to prove ownership of a dance because so many components may have been drawn from, or heavily inspired by, previous works; this is an artform littered with the appropriation and reinterpretation of specific expressive movements.

In the case of the Floss, Alex Tutty points to video evidence of this move being performed in 2012, years before the Backpack Kid came to fame performing it with Katie Perry.

Meanwhile, Alfonso Ribeiro’s lawyers claim that the Carlton dance is his “iconic intellectual property”, but comparisons have been drawn with similar dances by Eddie Murphy and, famously, Bruce Springsteen and Courtney Cox in the Dancing in the Dark video. Furthermore, as the Carlton dance was first performed on a TV show, who actually owns the copyright? In a famed 2002 case, the heir of dance school founder Martha Graham claimed that the dances she devised and taught belonged to her rather than to the centre. After a protracted legal battle, a federal district court judge ruled in the favour of the school and the Martha Graham Dance Company got to keep its moves.

In short, unless all three complainants settle out of court, we’re in for a long and elaborate dance off, and there is a little more at stake than a withering putdown from Craig Revel Horwood.

AT&T, T-Mobile and Verizon should be turning the volume up. Their current quiet murmur is just not enough.