Smooth moves – can a dance move be protected by copyright?.

Since its launch in 2017, the video game Fortnite has exploded in popularity.  The game itself is free to play, but the developer and publisher, Epic Games, monetises it by selling costumes for characters within the game, as well as animated dance moves – otherwise known as “emotes”.

Background

In December 2018, Russell Horning (otherwise known as Instagram’s “Backpack Kid”) and Alfonso Ribeiro (the actor who played Carlton on the ’90s American sitcom The Fresh Prince of Bel-Air) became the latest claimants to sue Epic Games for copyright infringement by using and selling their dance moves as emotes without consent.

Epic Games had already been sued for copyright infringement by the rapper Terrence “2 Milly” Ferguson in early December 2018, while Chance The Rapper had previously criticised the company’s general use of dance moves in Fortnite without notifying or crediting the creators of the moves.

Ribeiro is claiming against the “Fresh” emote, 2 Milly is claiming against the “Swipe” emote, and Horning is claiming against the “Floss” emote.

For these lawsuits against Epic Games to succeed, the litigants will need to prove that they invented the dance moves in question and so own copyright in them.

Can dance moves be copyrighted?

Under section 1 of the Copyright, Designs and Patents Act 1988 (CDPA), the types of work that are capable of copyright protection include “original literary, dramatic, musical or artistic works”.  Under section 3 of the CDPA, the definition of a “dramatic work” encompasses works of dance or mime.  But for the dance in question to be eligible for copyright protection, it must be “original”.

Although the concept of originality is not defined in the CDPA, case law has developed its meaning.  The leading case of Infopaq International A/S v Danske Dagblades Forening (Case C-5/08) suggests that a harmonised standard of originality applies to all works.  Put simply, if the creator can prove that the dance move has been created through their own skill, judgement and individual effort, and also that it is their own intellectual creation (i.e. not copied from other works), the move will be eligible for copyright protection.

To establish that a work is a product of an author’s skill, labour and judgement, the input must satisfy a certain minimal standard of effort.  Indeed, given that this threshold is a relatively low one as illustrated in cases such as Walter v Lane [1900] AC 539 and Cummins v Bond [1927] 1 Ch 167, there should be no issue here in establishing that the dance moves of Horning, Ribeiro and 2 Milly are products of their skill, labour and judgement.

Yet it is likely to be significantly more challenging for the creators to satisfy the second originality requirement by proving that their respective dance moves have not been copied from another work.  This may prove to be a stumbling block for Ribeiro, in particular, following his comments in 2012 detailing how he “stole” his dance move (the “Carlton Dance”) from Courtney Cox’s dancing in Bruce Springsteen’s music video for Dancing in the Dark, as well as from Eddie Murphy’s “White Man Dance”, as performed in the video of his stand-up comedy special “Delirious”.

In Eva-Maria Painer v Standard Verlags GmbH (Case C-145/10), the Court of Justice of the European Union clarified that an intellectual creation is the author’s own if “it reflects the author’s personality” and if “the author was able to express his creative abilities in the production of the work by making free and creative choices”.  No doubt Horning, Ribeiro and 2 Milly would assert that their respective moves are products of their creative abilities and choices.

Section 16(3) of the CDPA provides that an act can infringe copyright if done, either directly or indirectly, in relation to the work as a whole or any substantial part of it.  It was made clear in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 that, when considering whether or not a “substantial part” of a work has been copied, the test is qualitative, rather than quantitative.  As a result, whether Epic Games has infringed copyright in a dance move used in the emote would depend on the significance of the copied part in relation to the underlying dance as a whole rather than merely the amount of the dance that has been copied.  It would appear that the “Fresh”, “Swipe”, or “Floss” emotes in Fortnite represent crucial aspects of their respective underlying dances.  So it is certainly arguable that the copied moves are of substantial significance and, in turn, constitute substantial parts of the protected whole works.

The answer to the question of originality will vary depending on the dance.  If, however, a dance move is so recognisable that it can be immediately distinguished from all other dances and attributed to the creator, even when performed by a character in a video game, it seems likely to have at least a degree of originality.

Do any exceptions to copyright apply?

While there are several exceptions to copyright that allow limited use of copyright works without the permission of the copyright owner, the main potentially relevant exception for Epic Games in this context is that of “parody, caricature and pastiche”.  For example, under this exception, a cartoonist could refer to a famous artwork for a caricature, which is perhaps analogous to Epic Games’ use of part of a well-known dance to create an emote in Fortnite.

But this exception only permits use for the purposes of caricature, parody, or pastiche to the extent that it is fair dealing and, in each case, this will be a matter of fact, degree and impression.  A court would query how a fair-minded and honest person would have dealt with the work while also taking various factors into account, such as whether using the work affects the market for the original work, and whether the amount of the work taken is reasonable and appropriate.

The relative importance of any one factor will vary on a case-by-case basis.  But given that Epic Games are profiting from the emotes, the company seems unlikely to show that their use is fair dealing and, in turn, unlikely to be able to rely on this exception should copyright infringement be established.

Comment

If 2 Milly, Ribeiro, and Horning can prove that they created their dance moves, and assuming that they have not already exclusively licensed the rights to their dances to another, then in the future Epic Games will require a licence from each of them to copy, edit, use and incorporate the underlying dances within the emotes in return for a licence fee and, potentially, an ongoing royalty or share of profits from sales income generated from the emotes.

On a separate note in respect of any past infringement of copyright, although the actual monetary implications of a successful action would be somewhat unclear, given the potential difficulty of valuing a dance, it could be presumed that any assessment of compensatory damages would be based on the amount that a willing licensee (i.e. Epic Games) would pay a willing licensor (i.e. Ribeiro, 2 Milly or Horning) in a hypothetical negotiation.  But as to calculating additional damages for any past infringement, other factors such as the economic impact (including unfair profits) and the blatancy of the infringement might be considered by a court.

At any rate, it seems that the increasingly adverse reaction to appropriating dance moves may result in greater awareness and respect of artistic ownership in general.  Until tested in court, however, it will be debatable whether or not these emotes amount to an infringement of copyright.