Fortnite Sued for Copyrighted Dance Moves
Recently, online video game makers have been selling avitar custom modifications including various tools or weapons, skins, clothing and emotes such as a dances or player movements. Many players use these emotes as a way to celebrate or to simply have fun while playing the game. However, some of these emotes include copyrighted dance moves which incorporate the likeness or image of famous celebrities. Recently, Epic Games (the makers of Gears of War and Fortnite) along with Take-Two Interactive (the maker of NBA 2K video games) have been sued by multiple celebrities for copyright infringement and misappropriation of publicity and likeness for using their copyrighted dance moves.
Dance Moves – in Games
The copyright infringement claim is based on the claim that Epic Games created an emote which unlawfully incorporated the copyrighted dance moves which included the celebrity’s likeness. The emotes are basically a digital version of the likeness at issue. The Milly Rock emote is basically a digital version of the dance performed by the rapper known as 2 Milly. The Dance emote was basically a digital version of the infamous “The Carlton” preformed by “Carlton” (Alfonso Ribeiro) on The Fresh Prince of Bel-Air. The Floss emote was basically a digitized version of the dance preformed by the Backpack Kid. The Carlton, The Floss and the Milly Rock dance emotes were then sold to various players during their play Fortnite and NBA 2k allowing them to then preform The Carlton and the Milly Rock emotes in a virtual game environment.
Fortnite Fee to Play
It is estimated that Fortnite has over 200 million players and has generated between $1 billion and $2 Billion in revenue through in-game purchases such as emotes. In determining how much Epic and Take-Two are liable, the courts will need to determine the fair market value of their property right. For celebrities, this right will typically be more than for a typical kid on Youtube. However, Youtube actors be a celebrity in their own right. In determining the fair market value of the property right, the courts will typically look at the “going rate” for the appropriated use or endorsement. The court can in effect, create a contract under which the Epic and Take-Two must compensate the celebrities. In some cases, the court will look to see what the celebrity has commercially licensed his personality for in the past. They may also look to see if their are any prior endorsement fees which are relevant. While Fortnite is free to play, Fortnite may have a fee to pay if they lose this royal battle.
Dance Moves – Copyright
Playing Fortnite might be child’s play, but winning a copyright infringement suit based on a copyrighted dance moves will not be so easy. In 1976 choreography was added to the enumerated categories of works protected under Copyright. As a result, the U.S. Copyright Act provides protection for “choreographic works” created after January 1, 1978. However, the definition of what constitutes a protectable choreographic work has been a subject of debate and legal interpretation. Generally, copyright can protect choreographic movements including dances and music videos. However, individual or generic dance steps or movements such as the basic Waltz, the Hustle or the Grapevine are more difficult. Basic positions, like Yoga positions are typically not covered under copyright law.
The Hanagami v. Epic Games Case
In Hanagami v. Epic Games, the Ninth Circuit Court of Appeals issued a landmark ruling in the protection of copyrighted dance moves, stating that courts must consider choreography holistically. There is not “a bright line distinction between copyrightable choreography and uncopyrightable dance.” While there are “limitations on what types of movements are copyrightable as choreography,” when it comes to infringement “there is no bright line as to what amount of similarity is permitted before an accused work is deemed ‘substantially similar.’”
According to the Court, choreographic works are a composition and arrangement of a related series of copyrighted dance movements and patterns organized into a coherent whole. Sometimes choreographic works include rhythmic movement in a defined space, compositional arrangements, musical or textual accompaniment, dramatic content, are presented before a live audience, and are executed by skilled performers. While individual dance elements, such as individual movements or dance steps by themselves are not copyrightable, the choreographer’s selection and arrangement of the work’s otherwise unprotected elements is protected. The relationship between dance movements and patterns, and the choreographer’s creative approach of composing and arranging them together, is what defines the protectable work.
In determining if a choregraphic work qualifies for protection, the Court emphasizes that, while individual static poses or steps may not be protectable on their own, in making a comparison between two works, care should be taken to look at the creative selection and arrangement of elements such as the dynamic movement of the limbs, the hands and fingers, the head and shoulder, the tempo, the body shape/positions that share the same pathways and transitions. As a result, the Court’s ruling clarifies what choreographers can protect, especially in the context of short-form dance moves used in video games or social media.
Dance Moves – Right of Publicity
In California, the right of publicity protects a person’s right in their name or likeness. Basically, the law allows someone to protect the use of their name, likeness or other personal attributes without their permission. A person can sue another if they use their likeness without their permission commercially. This includes use in any advertising or promotional activity. Right of Publicity can extend to a person’s:
- Name
- Voice,
- Signature,
- Photograph, and
- Likeness.
While this law varies from state to state, generally, celebrities have the right to control how their likeness is used and not used commercially. California has tested the right of publicity and in many cases has found companies liable for the unauthorized use of an actresses or celebrity’s likeness.
Dance Moves – Trademark Considerations
While copyright protects the expression of ideas, trademark law can come into play when a dance move becomes closely associated with a particular individual or brand. For instance, if a specific dance move becomes a signature of a celebrity or dance troupe, it might be possible to argue for trademark protection. While it is not common for a dance move to be the subject of a trademark application, several different marks have been awarded as a motion mark including a trademark for the Pixar lamp animation, the Bad Robot animation in front of J.J. Abrams movies. However, before trademark protection will be granted, the applicant will need to demonstrate that the mark is distinctive and acts as a source identifier. Additionally, evidence of consumer recognition may need to be provided.
The Importance of Expert Legal Guidance
Navigating the complex landscape of intellectual property law as it relates to dance moves and digital media requires specialized knowledge and experience. An intellectual property attorney well-versed in this niche area can:
- Assess the protectability of your choreographic work
- Develop strategies for maximizing legal protection
- Help negotiate licensing agreements for your dance moves
- Represent you in disputes or litigation if necessary
Take Action to Protect Your Creative Work
Don’t let your copyrighted dance moves become someone else’s profits. Whether you’re a choreographer, dancer, or content creator, protecting your intellectual property is crucial in today’s digital age. Our firm specializes in helping artists and creators navigate the complex world of intellectual property law. We understand the unique challenges posed by new technologies and platforms, and we’re committed to staying at the forefront of legal developments in this rapidly evolving field. Contact us today to discuss protection and defending your rights.