Performers Sue over Fortnight Dance Moves

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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DancingThree performers have sued Epic Games, which makes the online game Fortnite, claiming that it stole their dance moves.

As the New York Times reported, the game is free to download but offers in-game purchases such as dance moves called “emotes”:

Among those moves, according to the complaints, filed beginning in December in Federal District Court in Los Angeles, is an enthusiastic back-and-forth arm-swinging motion that looks just like the Floss, a speedy little dance created by Russell Horning, a teenager from Lawrenceville, Ga., who goes by the name Backpack Kid.

Another move, called “Fresh,” allegedly looks like the Carlton Dance as performed by Alfonso Ribeiro, who played Carlton on the show The Fresh Prince of Bel-Air.

A third dance move was claimed by the rapper 2 Milly.

Choreography and Hot Yoga

Dance choreography, like other creative works, can be copyrighted, but there aren’t a lot of copyright cases involving dance.

As I discussed in this blog post, the Ninth Circuit Court of Appeals ruled that a sequence of poses claimed by “hot yoga” guru Bikram Choudhury weren’t protectable under US copyright law.

In the wake of the yoga dispute, the US Copyright Office issued a new policy making clear that an individual yoga pose couldn’t be protected by copyright law — any more than a choreographer could protect a new-and-improved pirouette.


As the Times noted,

When deciding if a dance is eligible for copyright, courts look at a combination of factors, including its level of creativity, its complexity or length, and whether the work was independently created. You can’t copyright a musical note or a word, for example, but string enough of them together and you’ve got a song you can own. Individual dance steps are likewise not copyrightable, according to the copyright office’s rule book. And the dances targeted in Fortnite are all quite short.

A full-length ballet can clearly be the subject to copyright protection, but how long does a dance move have to be to quality for copyright protection?

There are other legal issues as well. The US Copyright Office won’t register “social dances,” like ballroom dancing or break dancing.

The Right of Publicity

If the plaintiffs don’t prevail on their copyright claims, they may still win on other causes of action.

The “right of publicity” gives people control over their own names, voices, and images. One famous case involved a blond, letter-flipping robot who looked very much like Vanna White of The Price is Right.

Another case involved a man whose 15-second act involved getting shot out of a cannon at the county fair. He asked a freelance reporter not to film him, but the reporter did so anyway. When his entire act was broadcast on the news, he sued. The case made it all the way to the US Supreme Court, and the human cannonball won.

It was the first (and, so far, the only) US Supreme Court case to deal with the right of publicity.

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