“Milly Rock” Dance + Fortnite Lawsuit = Are Dance Moves Protectable IP?

Attribution @Whelsko
Attribution @Whelsko

 

Fortnite, the popular online battle royale style video game developed by Epic Games, just can’t seem to get a break. From lawsuits against hackers / cheaters, to being sued by the makers of PUBG, another extremely popular battle royale online game, for copying their gaming format, and even possibly getting in trouble for Fortnite’s recent Mothmando outfit, which is allegedly an outfit in the game that was derived from the moth meme, Epic just can’t seem to stay out of the spotlight. Now it seems that they also have a problem staying out of the civil courts.

One of the things that Fortnite is well known for are their emotes, which are devices that allow players to make their characters perform popular dances or hand gestures within the game. Since their emotes are of popular dance trends, many Fortnite dances became viral trends. One of their emotes is called the “swipe it,” and it is clearly a replica of the “Milly Rock” dance created by rapper 2 Milly. It seems that the rapper did not have a problem with Epic’s use of the dance in Fortnite, but started having reservations about the use of his dance in the game after it was discovered that players must purchase the ‘swipe it’ emote (whether purchasing it directly or winning it as a prize in a battle pass . . . which gamers have to pay for) in order to use it.

Since then, 2 Milly has stated that he will take legal action against Epic Games, whose Fortnite game has garnered more than $1 billion dollars from the sale of emotes and other such microtransactions within the game. The rapper is being represented by California law firm Pierce Bainbridge Beck Price & Hecht LLP. In the press release announcing 2 Milly’s case, Pierce Bainbridge said in a statement that “[t]his isn’t the first time that Epic Games has brazenly misappropriated the likeness of African-American talent . . . . [o]ur client Lenwood ‘Skip’ Hamilton is pursuing similar claims against Epic for use of his likeness in the popular ‘Cole Train’ character in the Gears of Wars video game franchise.” David L. Hecht, a partner at Pierce Bainbridge, added that Epic Games cannot be permitted to continue taking “what does not belong to it.”

According to CBC, several artists have accused Fortnite of stealing their dances. Chance the Rapper has called out Fortnite for capitalizing off of “black creatives” without financial compensation. Sources that have done comparisons noticed that Fortnite’s “Tidy” emote is taken from Snoop Dogg’s dances in the “Drop it Like It’s Hot” video, their “Hype” emote is the same as BlocBoy JB’s “Shoot” dance, their “Fresh” emote is the dance that ‘Carlton’ from the “Fresh Prince of Bel Air” is well known for, their “Ride the Pony” emote is the dance from Psy’s “Gangnam Style” music video, and the list just goes on and on.

This lawsuit and other complaints against the dances features in Fortnite really call into question one single, ultimate issue, and that is: are dance moves a form of IP that can be legally protected?

Eric Norton, a trademark attorney based in Costa Mesa, California, does not think so. Well, kind of. On his website, he states that “[d]ance moves themselves are not trademarkable because they are not used to identify where goods or services originate, unlike a logo, slogan, or brand name,” and that just because you identify a certain type of move with a particular individual (like the “Milly Rock,” the dance from Snoop Dogg’s “Drop It Like It’s Hot” video, or the “Lean Back”), and just because the move is considered their ‘trademark’ dance move, doesn’t mean that it is capable of being registered with the USPTO. Norton does clarify that an individual might be able to copyright a dance, but not the move itself, as one seeking copyright protection for a dance would “have to combine a number of dance moves and patterns into an expressive whole for it to be eligible for copyright protection.”

The U.S. Copyright Office has actually given some instructive guidance on whether dance moves can be copyrighted. In their “Circular 52: Copyright Registration of Choreography and Pantomime,” they define choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole,” and explain that [c]horeography and pantomimes consisting of:

  • ordinary motor activities (such as general exercise routines or feats of physical skill or dexterity);
  • social dances (which include ballroom dances, folk dances, line dances, square dances, and swing dances);
  • commonplace movements or gestures (such as “a set of movements whereby a group of people spell out letters with their arms,” yoga positions, or a celebratory end zone dance move or athletic victory gesture);
  • or athletic movements (including athletic activities [such as a new tennis swing, a golf swing, or a unique slam-dunk maneuver], skateboarding or snowboarding tricks, and yoga poses / sequences);

“may lack a sufficient amount of authorship to qualify for copyright protection.” They even specify that “short dance routines consisting of only a few movements or steps with minor linear or spatial variations,” cannot be copyrighted “even if [the] routine is novel or distinctive.”

Well I hope, at least for Epic Games’ sake, that they have a great legal team.

 

To see a list of all of the Copyright Office’s circulars, you can check this link here.

 

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