Can a dance be copyrighted?
In a recent Variety article exploring the validity of three lawsuits filed against Fortnite creator Epic Games, Jackson Walker partner Matt Acosta addressed the complexities of establishing copyright protection for the dance moves featured in the online video game.
The plaintiffs – rapper 2 Milly, “The Fresh Prince of Bel-Air” actor Alfonso Ribeiro, and Instagram’s “Backpack Kid” – claimed the developer used their trademark dance moves in Fortnite without permission or compensation.
“Whether dances are subject to copyright is not a slam dunk. The Epic Plaintiffs will likely contend with several hurdles in order to show that their dance moves are copyrightable,” Matt pointed out in the article. “One of the issues that the Plaintiffs will face in the Epic cases is to show that their respective dance moves are sufficiently original from other dances to deserve copyright protection.”
Generally, any original creative work – including movie scripts, songs, and sometimes computer code – may be subject to copyright protection, Matt noted. However, the Epic Plaintiffs must prove their dance moves have original elements that are unlike other dances that have been historically created or performed. They must also prove the dance move is not part of a greater whole and rather a singular expressive work.
“The Copyright Act specifically excludes ‘any idea, procedure, process, system, method of operation, concept principle, or discovery,’” Matt said. “In other words, an expression of an idea is copyrightable, but the idea is not.”
Matt discussed that in Bikram’s Yoga College v. Evolation Yoga, the United States Court of Appeals for the Ninth Circuit held that a sequence of yoga poses and a related book were not subject to copyright protection because the poses were a system designed to improve health, rather than an expression of an idea.
“The Epic Plaintiffs will also likely contend with arguments that their dances are some type of process, procedure or system, rather than purely an expressive work,” he said.
More insights about the lawsuits can be found by viewing Variety’s “‘Fortnite’ Dance Lawsuits: The Carlton, the Floss, the Milly Rock, What Is Going On?”