Fortnite Creator Facing Potential Lawsuit Over 'Stolen' Dance Moves - A Legal Analysis

The following is a repost of a piece over on my own blog at www.legalgamer.weebly.com.
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“FORTNITE FACES LAWSUIT FOR ‘STEALING’ RAPPER’S INFAMOUS MILLY ROCK DANCE”

“RAPPER MAY SUE EPIC GAMES OVER FORTNITE DANCE MOVE”

Mo’ money mo’ problems as they say, which certainly seems to be the case for Epic Games, the creators of mega-hit ‘Fortnite’. Stories are hitting the headlines (see here and here) that at least one artist is considering suing the studio for ‘stealing’ his iconic dance move. But is there a valid legal basis for these claims? Are dance moves like those complained of actually protectable by copyright? If not, are there any other relevant legal issues at play here? Let’s check it out. 

Are dances protected by copyright?

The short answer here is; sometimes. I know, it’s a horrible legal answer.

The longer answer is that is really depends what country’s copyright laws we’re looking at here. For example, UK copyright law grants protection to “dramatic works” which are defined to include works of dance and mime (CDPA 1988 s3). What exactly constitutes a “work of dance” isn’t defined further. The US Copyright Act 1976 on the other hand protects “choreography” which is generally considered as a related series of dance moves (CA 1976 s102(a)(4)). So yes, certain works of ‘dance’ and ‘choreography’ are protectable by copyright in the UK and US respectively. Different countries have different rules around what is and isn't protected.

But when we drill down into things a little deeper, this is where problems start to appear. For example, the US operates a copyright registration system and the US Copyright Office (USCO) has set out guidelines on what types of ‘choreography’ it considers acceptable to register (see here). In this, the USCO states that it won’t accept “commonplace movements” or “social dance steps and simple routines”, “even if they contain a substantial amount of creative expression”. As an example, the USCO explicitly calls out “celebratory end zone dance moves or victory gestures” as a prohibited routine. The idea being that some dance moves are so simple, so everyday that to allow them to be registrable would stifle creative freedoms or have a chilling effect on the general public’s ability to perform them.

​In addition, it is a fundamental and universal tenant of copyright laws that there has to be a sufficient degree of ‘originality’ in a piece of work before it acquires copyright protection. 

What about the ‘Milly Rock’ etc?

The dance move at the core of the latest complaints comes from rapper 2 Milly and is called the ‘Milly Rock’. The in-game dance emote that players can buy in Fortnite is called ‘The Swipe It’, but numerous videos on YouTube show that the two dances are near identical (see here). On the face of it, that doesn’t look great for Epic Games, but taking what we’ve learned above, does 2 Milly actually own copyright to the Milly Rock in the first place?

Arguably not, for a number of reasons.

First, if we’re looking at US law (which would be the most probable applicable law here given the location of 2 Milly and Epic Games), the USCO’s explicit prohibitions on registering “social dance steps and simple routines” would prove fairly difficult to overcome. As far as I’m aware, other iconic dance moves such as the ‘Moonwalk’ have not been registered with the USCO for similar reasons. Under UK law there’s no explicit prohibitions from protectability on simple moves like those from the USCO, but I’m also not aware of there being great discussion regarding what is and isn’t a protectable “work of dance”.  

Second, there could be issue with whether or not the Milly Rock was sufficiently ‘original’ so as to warrant protection. The test for originality is complicated and differs not only be country but also by industry (see here), but it generally means that the work in question was produced as a result of the artist’s creative and personal choices. It’s often not seen as a particularly high threshold, but there have been some surprising applications of this requirement by courts in both the EU and US.

Third, assuming that dances like the Milly Rock are protectable by copyright, there could then be questions regarding who actually owns this. Initially, this would be the creators of the dance move or choreography themselves. But things can get complicated when the precise heritage of a piece of work is unknown or questionable. For example, did 2 Milly create the dance when shooting the relevant music video? If so, there could be questions re whether 2 Milly owns the move or maybe his production company does (it really depends on the paperwork in place between the two). Or maybe the Milly Rock took inspiration from an earlier dance move, or was co-created with another artist. The point is, even if 2 Milly gets over the copyrightability hurdle above, it’s not necessarily smooth sailing from there.

Anything aside from copyright?

While copyright seems on the face of it to be the most applicable type of IP protection for dance moves, it’s perhaps not the only one. For example, some readers may be familiar with Musret ‘Salt Bae’ Gökçe who recently successfully (partially) registered a three second long motion trade mark of the infamous salt-sprinkling and meme-inspiring move (see here for law and here for memes). It’s unlikely that artists have considered trade marking their iconic dance moves to-date, but maybe this will change going forwards.
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Artists may also try to argue that Epic Games’ is unfairly profiting off of the artist’s goodwill and reputation. However, that argument is problematic because it’s questionable how much people really associate these dance moves with their original creators. Does the average Fortnite player really know that the ‘Fresh’ dance in Fornite is replicating Carlton’s moves from the Fresh Prince of Bel-Air, or do they like the dance on its own merits? In other words, it’s not clear that Epic Games is profiting from a dance’s existing reputation rather than actually being the latest source of such reputation itself. 

Final Thoughts?

It’s unclear how this situation is going to be resolved, but it’s undoubtedly a sticky situation for Epic Games which straddles legal, ethical and PR boundaries. Interestingly, one article (see here) suggests that ‘The Swipe It’ has been temporarily removed from sale, so maybe we won’t have too long to wait to find out.