Choreography is protected by the Copyright Act. 1 Yet, lawsuits alleging copyright infringement in dance routines are rare. Perhaps the reason why was revealed last week where a recently filed suit over dance moves incorporated into the videogame Fortnite failed to make it past a motion to dismiss. 2 The reason why? The copyright extends to the entire work, not individual dance steps or poses.
Plaintiff created choreography to another artist’s song, and filmed a video which he placed on YouTube. He sued Epic Games, the creators of the Fortnite video game over the ability to include an “emote” into the game which he feels improperly copies his dance moves. That’s right, the offending visuals are not part of the actual game itself, but can be inserted into the game at the instance of a player.
As the Court explains:
“Though Fortnite is free to play, it has an in-game marketplace (the ‘Item Shop’) where players can purchase virtual currency to, in turn, purchase virtual customizations for their in-game characters. These customizations include new clothes, weapons, or, as relevant here, ‘emotes.’ Emotes are animated movements or dances, which players can perform in Fortnite.
The emote at the heart of this case is called ‘It’s Complicated.’ Players can purchase the ‘It’s Complicated’ emote in the Item Shop to perform while playing Fortnite. Plaintiff alleges that the ‘It’s Complicated’ emote contains ‘the most recognizable portion of Plaintiff’s Registered Choreography, the portion for the hook at the beginning of the chorus of the song[.]’
The portion of the work at issue is set to four counts of music; the dancers repeat the movements twice in the song’s chorus (the ‘Steps’). Having reviewed Plaintiff’s video and Defendant’s emote, the Court compared side-by-side still images of the dances…[t]en of the poses in the video and the emote are the same.” 3
You would think that this finding would be the end of the case with a finding for the Plaintiff. However, “poses” standing alone are not copyrightable.
Consider the case of Bikram Yoga College of India v. Evolation Yoga LLC 4 which was analyzed previously in this blog post. 5 There, it was contended that a series of yoga poses were in fact “a dance.” The Court rejected that argument stating that they were merely a part of a non-copyrightable process.
Curiously, the Copyright Act does not define either “dance” or “choreography.” One must look to the Copyright Office’s Compendium of Copyright Office Practices for the proper definition.
“The Compendium II defines ‘dance’ as ‘static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.’ (citation omitted) The ‘dance movements,’ according to the Compendium II, ‘must be more than mere exercises, such as ‘jumping jacks’ or walking steps.’”
Here is where Plaintiff runs into trouble. The “poses” themselves are not “successions of bodily movement” and thus are not individually protected by copyright.
According to the Court:
“Defined as ‘the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole,’ choreographic works are composed of a number of individual poses that, when ‘viewed in isolation,’ would not be protectable.
Here, Defendant contends that not only are the individual poses unprotectable, but the Steps as a whole—the two-second combination of eight bodily movements, set to four beats of music—are unprotectable.” 6
“Guidance from the Copyright Office suggests that the Steps are unprotectable. For example, the Copyright Office rejected a claim to steps called the ‘Floss,’ but when those steps were incorporated into a longer work, the Copyright Office registered the work. (citation omitted) The Copyright Office rejected a claim to the ‘Carlton’ because it was merely a ‘simple routine,’ (citation omitted) and a claim to a dance called the ‘Five-Petal Flower’ routine, (citation omitted) And the Copyright Office explained in its Compendium, that even if the ‘Made in the USA’ dance might be registered as a whole when ‘[d]uring the chorus, the dancers form the letters ‘U, S, A’ with their arms…the Office would reject a claim limited to the ‘U, S, A’ gesture.’ Compendium (Third) § 805.5(A).” 7
“But whichever way the Court evaluates Plaintiff’s Steps—two seconds, four beats of music, or eight body positions, repeated ten times throughout the Registered Choreography—Defendant has the better of the argument. There is no authority to suggest that Plaintiff’s Steps are protectable when viewed out of the context of the whole of Plaintiff’s work; indeed, the weight of authority suggests otherwise.
On the continuum of choreography, the Steps are closer to a short routine like the ‘Floss’ dance or to the ‘U, S, A’ movements, neither of which would not be protectable. Numerically, the Steps make up as small component of Plaintiff’s work, suggesting that the Copyright Office would not register the two-second Steps as a discrete work. ‘The fact that a dance or movement may contain more than a trivial amount of original authorship is irrelevant to th[e] determination.’ Compendium (Third), § 805.5(B).
Accordingly, the Court concludes that… Plaintiff is ‘entitled to protection only for the way the [Steps] [are] expressed in his [Registered Choreography],’ a product of the various creative choices Plaintiff made in composing the Registered Choreography—i.e., in the entire five-minute work.” 8