One of today’s most popular videogames is at the heart of several high-profile copyright battles. Fortnite Battle Royale is a free-to-play shooter game rendered in punchy technicolor graphics. Though the game allows for solo play, Fortnite functions primarily as a social game, encouraging players to team up and interact with each other. Part of this social component is the customizability of each player’s avatar, including the ability to purchase or earn (through extended gameplay) different in-game dance moves called emotes. The problem? The emotes look a whole lot like real-world dances.
Several artists, musicians, and performers launched suits against Fortnite developer Epic Games, arguing that Fortnite’s emotes infringe upon their exclusive copyrights to the original dances. The plaintiffs in these suits range from rappers like 2 Milly and Blocboy JB to viral YouTube stars like Backpack Kid. Even Alfonso Ribeiro, who played Carlton on The Fresh Prince of Bel Air, brought a suit against Epic over Fortnite’s “Fresh” emote. (See this handy chart comparing the plaintiffs’ original dances with the allegedly infringing emotes, or this video comparing all emotes with their original .)
Though many of the complaints also contain trademark and right of publicity claims, the big question is whether these dance moves are copyrightable. The answer so far seems to be: probably not. Section 102(a)(4) of the Copyright Act extends copyright protection to choreographic works. However, the U.S. Copyright Office’s Compendium of Best Practices explains that choreographic works protected under 17 U.S.C. § 102(a)(4) do not include social dances or simple routines:
The Office defines choreography as the composition and arrangement of “a related series of dance movements and patterns organized into a coherent whole.” . . . However, the term choreography is not synonymous with dance. The legislative history for the 1976 Copyright Act clearly states that “‘choreographic works’ do not include social dance steps and simple routines.”
Section 805.5(A) of the Compendium goes on to explain that even a highly original short dance routine is, nonetheless, not copyrightable:
Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle, the grapevine, or the second position in classical ballet. Likewise, the U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or special variations, even if the routine is novel or distinctive.
Citing these provisions of the Compendium, the Copyright Office recently denied Alfonso Ribeiro’s copyright registration for what is popularly known as the “Carlton.” In their rejection letter, the Office determined that the Carlton is a simple dance routine and is therefore not a registrable choreographic work. Because registration is a prerequisite to filing a suit for copyright infringement, this rejection proved fatal to Ribeiro’s case. Ribeiro withdrew his suit on March 7, 2019.
Another damaging development in the Fortnite copyright suits came on March 4, 2019, when the Supreme Court handed down a decision in Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC, et al.
Though copyright registration is a prerequisite to filing an infringement suit, the circuit courts were split regarding when this registration requirement is satisfied. Some circuits held that simply filing the materials to apply for registration was enough to allow a plaintiff to bring an infringement suit, while others held that the Copyright Office must make a final determination on the application before a suit can be brought. The Supreme Court resolved this split in Fourth Estate, holding that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.”
After the Fourth Estate decision, the remaining Fortnite plaintiffs withdrew their suits. These plaintiffs have yet to be granted copyrights on their allegedly infringed dance moves and therefore have not satisfied the registration requirement. Although it is possible that the plaintiffs could refile if granted the copyrights to their moves, the outcome seems unlikely given the Copyright Office’s decision on Ribeiro’s application and the definition of copyrightable choreography in the Compendium.
Yet this still feels like an unsatisfactory outcome. Hyper-robust copyright protection for simple dance moves might not be ideal, but there does seem to be a cognizable harm in extracting an original dance from a community and monetizing it in the way Epic has with Fortnite’s emotes.
To extend copyright law as it currently exists to simple moves like those emulated by Fortnite’s emotes would effectively permit someone to own the copyright for a seconds-long series of movements and prevent anyone else from performing or recording those movements.
On the other hand, there is a distinction between a real human dancer performing a dance move and the kind of identical or near-identical digital reproduction of motion patterns at scale in which Epic is engaged. To quote New York Magazine’s Brian Feldman: “It seems shady for Epic to clone movements, give them winking names that all but outright say who the inspiration for the said moves are, and then claim they don’t owe their inspiration anything in return.” In addition, many of the emotes appear to have been copped from the Black community and stripped of their cultural context, part of a long historical pattern of harmful cultural extraction.
Congress enacted the current version of the Copyright Act in 1976, and the Act has often proved inflexible in the wake of the rapid technological development that has since occurred. Copyright disputes like the Fortnite cases may give rise to future calls for policy change and amendments to the Act that more appropriately address the nuanced world we live in. Until then, we will have to wait and see what the last dance saves for the Fortnite plaintiff’s copyright claims.*
*Dimitra Rallis is an executive editor on the Michigan Technology Law Review. She can be reached at drallis@umich.edu.