If only I filed the copyright registration for the “Funky Chicken” I would be a wealthy man by now. In the last two week, Epic has been hit with two lawsuits claiming famous dances by 2 Milly and Alfonso “Cartlon” Riberio were stolen and used in Fornite without permission. Are these lawsuit doomed to flop? (UPDATE – Since the posting of this article a third lawsuit was filed by “Backpack Kid” – copy say hello to cat)
**Is there copyright protection to a dance? **
First, in order to show copyright infringement you must prove that you are the owner to the copyright. With the 2 Milly case, he needs to show he created the “Milly Rock” dance and prove he is the owner to the rights to it. With Cartlon, the issue is a little bit more muddied. According to the complaint, Riberio first performed the dance on an 1991 episode of The Fresh Prince of Bel-Air. So a safe question here is, are NBC the owners of the series and copyright to the tv show the true owners of the dance?
Second, in order to file a lawsuit you must have a pending or actual copyright registration (it depends on where the case is filed as to what is required). In the case of Cartlon, he has a pending application which might not even be granted unless he can prove he owns the rights.
The Copyright Office has made it clear that it is not a fan in granting copyright protection in dance moves. This is what the Copyright Office has said about the copyrightability of dance moves: “individual movements or dance steps by themselves are not copyrightable…the U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations…” The Copyright Office goes on to say that even organized social dances like ballroom dances and square dance movements are not protected. However, the Copyright Office does grant protection to elements of choreography that include some common elements such as a story told through movement, a series of dance movements or patterns organized in a coherent composition whole, and a presentation before an audience.
*Long story short: dances are subject to copyright protection but on a very limited and difficult to prove basis. *
So where does that leave “Milly Rock” and the “Charleton” – according to the written statements by the Copyright Office not in a good place of protectability but this is a subjective determination by the Copyright Office for each registration submitted.
The rights of publicity claims are better, right, smarty-pants?
Both of these lawsuits asserts claims for violation of rights of publicity under California law. These claims say that Fornite uses the likeness of a celebrity creating the false impression that the celebrity endorsed Fortnite. Basically, when you see the “Charlton” dance being used in the game, you associate it with Charlton, and therefore you believe that he supports the use of his likeness and endorse the product. This is a better claim than the copyright infringement claim but still not a slam dunk.
So what’s going to happen?
Something like 90% of all lawsuits get settled. I, for one, don’t want to see a settlement here. I think Epic has some very good defenses to attack the copyrightability of the dances and whether there is any violation a celebrity’s right of publicity by having a game character do a dance. This will be a fun case to monitor and will have a big effect on video games in the future.