Intellectual Property

Dance, Dance, Litigation: Can Copyright Protect Your Funky Get-Down?

The issue of whether intellectual property law offers protection for dance routines has pop-locked its way into courtrooms for decades.

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Few among us do no not enjoy a good rug-cutting, especially this time of year, when the eggnog runs thick and free and Wham! booms from every other stereo. We don’t pause to think, though, whether our signature transition from the Running Man to the Milly Rock to the Stanky Leg to the Cabbage Patch and then BACK to the Running Man (oh snap, nobody saw that coming!) is protected by intellectual property laws.

Ridiculous, you say? This columnist has had one too many hot toddies, you say? Not at all; the issue of whether intellectual property law offers protection for dance routines has pop-locked its way into courtrooms for decades and recently appeared again in not one but two federal lawsuits.

In the first, New Orleans Bounce Queen Big Freedia brought suit again her erstwhile choreographer Wilberto Dejarnetti seeking declaratory relief in the form of an order stating that Big F owns her choreography and that she need not make payment to Dejarnetti in order to keep on dancing. Bounce music, and the accompanying dance moves, have been a big part of New Orleans culture for decades, stretching back to the B.L.W. (Before Lil Wayne) era. Dejarnetti, as the choreographer, may have a strong claim to ownership of the routines, but the question of whether they are protectable and whether they were created as a work-for-hire are both likely to be addressed.

The second is even more fascinating, as it relates to not just dancing, but avatars in a video game performing a dance popularized via YouTube by rapper 2 Milly, all of which could not be more 2018. The game, Fortnite, also happens to be the most popular game of the modern era. While free to download, the company behind the title, Epic Games, has raked in hundreds of millions of dollars via in-game purchases and other ancillary revenues.

2 Milly’s complaint alleges that he created the Milly Rock dance in 2011 and then, as required for copyright protection, fixed it in a tangible medium of expression by posting a music video on YouTube in which he performs the dance with his friends in his Brooklyn hometown. The video went viral and eventually garnered 18 million views and a host of celebrity fans like Rihanna, Chris Brown, and Wiz Khalifa, who each posted videos of themselves doing the signature dance.

In 2018, Fortnite released its Season 5 Battle Pass, an update to the game that allowed players to obtain certain new dance moves (or, in game parlance, “emotes”), including a dance called “Swipe It,” which was a recreation of the Milly Rock dance. Players paid to access the Battle Pass and then, upon reaching Tier 63, were able to access and have their avator perform Swipe It.

So, there is no question that Epic exploited 2 Milly’s dance in Fortnite and profited from that exploitation. And, since 1976 when the Copyright Act was amended to provide for the first time protection to “pantomimes and choreographic works,” dances like 2 Milly’s are protectable. The only question remaining is whether that exploitation of the dance rises to the level of infringement.

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To arrive at the answer we must start in the downward dog position. In the 2015 case of Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, the Ninth Circuit had to decide “whether a sequence of twenty-six yoga poses and two breathing exercises developed by Bikram Choudhury and described in his 1979 book, Bikram’s Beginning Yoga Class, [was] entitled to copyright protection.” The Ninth Circuit, in reviewing the facts, looked at the scope and applicability of copyright protection for a fixed sequence of physical movements.

They also explored the issue of copyright protection for choreographic works, noting that the term “choreography” had not yet been “defined in the copyright context,” but did not include “social dance steps and simple routines.” What was found to protectable under copyright was a “related series of dance movements and patterns organized into a coherent whole.” And dance moves were defined as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.” As an aside, next time you are up in the club, I encourage you to ask a friend to accompany you to the dance floor to engage in some funky static and kinetic successions of body movement. Lawyers, we really do take the fun out of everything.

In any event, the Ninth Circuit found in the Bikram’s case that the sequence of moves at issue did not quality as choreography and was not copyrightable. 2 Milly is, unfortunately, likely to face a similar fate in connection with his copyright claim.

The primary infirmity of his claim is that the Milly Rock dance, while awesome, is a relatively simplistic two-step comprised of basic elemental moves. In the Second Circuit case entitled, Horgan v. Macmillan, Inc., which addressed the copyrightability of ballet moves, the court noted that “simple routines are not copyrightable…. Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable.” The Second Circuit did note that their finding was “not a restriction against the incorporation of social dance steps and simple routines, as such, in an otherwise registrable choreographic work. Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer’s basic material in much the same way that words are the writer’s basic material.” But, here it would appear that there are not enough dance elements, basic or creative, woven together to create a protectable work.

While the legal claims are not strong, there is a morality dimension to this dispute that should not go unaddressed. Epic has made boatloads of cash from Fortnite, and an appreciable amount of the game’s appeal comes from the emotes, including Swipe It, the Milly Rock facsimile. So, while there may be no legal obligation to compensate 2 Milly (and the others whose dances have been co-opted, including the guy who played Carlton on the Fresh Prince of Bel Air, the guy who played Job in Arrested Development, and, the guy who is everywhere, Snoop Dogg), from a business ethics (and optics) perspective, payment of just consideration would be a way for Epic Games to move to the next level.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at [email protected], and you can follow his law firm on Instagram: @veniceartlaw.

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