Digital Dance Moves... the newest wave of litigation to hit Fortnite creator Epic games. Do these creators have a case, or is this a failed attempt to change the law?

Over the past few months, Epic Games the creators of Fornite saw an increase in the negative press over the Fortnite’s use and sale of digital dance moves via Fortnite’s in-game store. A number of creators came out against Fornite’s practice claiming Epic Games “stole the creator’s intellectual property, and is profiting off its use.”  Famous rapper, Terrence Ferguson a.k.a 2 Milly, Actor Alfonso Ribeiro, known as Carlon from the TV Fresh Prince, and even the mother of “Orange Shirt Kid” all filed copyright infringement cases against Epic Games claiming the studio willfully copied their various dance moves. Each case is seeking damages from Epic Games for the sale of the digitally recreated dance moves that Epic subsequently sold to the Fortnite player base.  Do these Plaintiffs have an actual case, or is this an attempt to force the courts to reinterpret the Copyright Act of 1976?

To answer the question we first must determine if a dance move can be copyrighted? For a work to qualify for copyright it must (1) be an original work of authorship or artistic expression, (2) fixed in a tangible medium of expression.  (17 U.S.C.A. §101) Copyrightable subject matter includes literary works, musical works, dramatic works, pantomimes, and choreographic works, and several other forms of artistic expression.  We are only going to focus on one, choreographic works.  The United States Copyright Office defines choreographic works as “the composition and arrangement of dance movements and patterns and is usually intended to be accompanied by music. (Compendium of Copyright Office Practices, Compendium II § 450.01 (1984)). Most importantly.

This leads up to the most important question, Can a single dance move or a simple routine of dance moves qualify for protection as a choreographic work? Does copyright protection expands to 2 Milly, Carlton, and the Orange Shirt Kid, and if so do they have the right to sue Epic for damages for subsequently “copying” these dance moves, and selling them via the Fortnite in-game store?

One of the important cases in examining these questions is Horgan v. MacMillan, a case concerning the alleged infringement of the copyright in George Balanchine’s choreographic works for the Nutcracker ballet. The Second Circuit when examining the Copyright Act and the legislative reports held social dance steps and simple routines are not copyrightable. H.R.Rep. No. 1476, 94th Cong., 2d Sess. 53–54, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5666–67. The Compendium of Copyright Office Practices, Compendium II (1984) The Court detailed that Section 450.03(a) explains:

“the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable. However, this is not a restriction against the incorporation of social dance steps and simple routines, as such, in an otherwise registrable choreographic work. Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer's basic material in much the same way that words are the writer's basic material.”

                The Court in Horgan indicates that the definition of what is a choreographic work and what is a simple dance move has to do with the “the flow of the steps.”  

                Now let’s apply the Horgan standard to the current cases against Epic. Do these cases, looking from purely a copyright infringement stand-point hold up? The answer has to be no. The Carlton, the Milly, the Orange Justice all of these moves are just that, a simple dance move. This is no different from the waltz, the hustle, etc. Yes, people do associate the move with a person or character, but is that alone enough for copyright protections? The answer still is no. While other claims could exist like a right of publicity, and likeness, that’s not what we are examining in this post. So what are these individuals doing going after Epic if the current legal standards don’t support their case? Clearly, they’re upset that someone is profiting off their dance move. Was it right for Epic to not compensate the creators? I can’t answer that, it’s something we call in legal industry as a “business decision.”  Was it illegal, does it entitle these individuals to damages, based on what we examined above, the answer is no.

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