Copyright Protection of Dance

Summary: Lawsuits against the popular gaming company “Epic Games” will force federal courts to expand upon copyright laws regarding dance and choreography.

Introduction

The video game Fortnite has over 200 million registered users, currently making it the most popular video game in the world. However, Epic Games, the creator of Fortnite, is facing multiple lawsuits related to potential copyright infringement. Celebrities and media icons claim the game developers stole their dance moves and, thus, their intellectual property. Millions of Fortnite users buy these dance moves on the game, so the actual dancers behind them want a share of the billions of dollars that Epic Games has generated from the game. While there is no hiding the fact that Epic Games made a profit from dances created by others, that does not necessarily mean that these dances are protected under copyright law.

How does something receive copyright protection?

In order for something to receive copyright protection, the work must be “fixed in a tangible medium of expression.” The moment an original work is fixed into this medium, it can be protected under copyright laws. Registration is not necessary but always recommended, just in case the creator brings up an infringement lawsuit. At that point, the work must be registered with the US Copyright Office. Additionally, works covered under US copyright laws are protected in not only the US but in many other nations.

What about dance?

Circular 52 of US Copyright Law states the rules and limits to choreography copyright protection. When it comes to dance, the preferred “medium of expression” is through video. Other acceptable mediums are textual descriptions, drawings, and dance notations. Above all, the dance must be original, independently created, and creative. “Commonplace movements or gestures” as well as “social dances” are not protected under copyright law. For example, classical dance such as ballroom dancing or swing dancing cannot receive copyright protection. However, if a dance is original and consists of minimal creativity, it may receive copyright protection. However, just because a dance consists of classical dance moves does not prevent it from achieving copyright protection. In Horgan v. Macmillan Inc, the Second Circuit Court of Appeals compared dance moves in a choreography to words on a writer’s paper. The court stated that although common dance moves cannot receive copyright protection, an original, creative dance routine consisting of these “commonplace movements or gestures” can still receive copyright protection.

Social Dances vs. Choreographed Dances

Ultimately the case against Epic Games relies on how the Federal Courts interpret these dances. As the defendant, the case for Epic Games will argue that these dances at question fall under “Social Dances,” which do not receive copyright protection. These dances were very popular before Fortnite included them, so the courts have the decision on how to classify these dances. The plaintiffs, on the other hand, will argue that these dances are choreographed works, unique in nature, and deserve copyright protection.

Establishing Precedence

There have never been similar cases to this one, so the federal courts will be weighing in on a very new topic. This means that eventually, the federal courts may be establishing some type of precedence on the matter for similar cases in the future. Therefore, this case is very significant in the fact that it can greatly influence the relationship between copyright protection and dance.

Jacob Turobiner is a freshman from Calabasas, CA, majoring in Political Science.

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