Photo by Michael Afonso on Unsplash
By Erik Bartley
On December 5, 2019, rapper Terrence Ferguson, better known as 2 Milly, filed a complaint to the U.S. District Court for the Central District of California claiming that Epic Games had illegally used his dance known as the “Milly Rock” for the massively popular game “Fortnite.”[1] Fortnite is a free-to-play battle royale video game that allows players to purchase different outfits and dances for the in-game characters. This business model has proven to be very effective; Epic Games is estimated to have earned around $2.4 billion in 2018 just from Fortnite.[2] However, many of the dances available to purchase in the game are allegedly copied from various famous dances from rap songs and television shows.[3]
Currently, 2 Milly’s lawsuit has been dropped due to a recent Supreme Court decision stating that a plaintiff must wait for the Copyright Office to respond to the copyright holder’s copyright application prior to filing a lawsuit for infringement.[4] The law firm representing 2 Milly, Pierce Bainbridge, stated that it will refile the suit once it receives a response from the Copyright Office on its application for copyright registration.[5] However, even with the litigation on pause, it still raises the question, “Can you copyright a dance?” The answer is the classic, “It depends.” Even so, it does not look so good for artists like 2 Milly in this case.
A copyrighted work is a form of original expression fixed in a tangible medium.[6] The Copyright Act explicitly includes choreographic works as a potential work of authorship.[7] However, Congress failed to define what a “choreographic work” was in the statute. Legislative history shows that while Congress felt that there was no need to define the term, it noted that choreographic works do not include “social dance steps or simple routines.”[8] But how long or complicated does a dance need to be to be protected under copyright?
One famous dance that the Copyright Office deemed to be ineligible for copyright protection was “The Electric Slide,” a twenty-two-step dance routine allegedly created in 1976 by Richard L. Silver.[9] In a letter from the Copyright Office to Mr. Silver’s lawyer, the office stated that there are three main reasons why social dances are not protected.[10] The first reason is because they are generally too simple to be considered creative works of authorship.[11] The second reason is that they are not the “dramatic” types of work that Congress sought out to protect under copyright, such as ballet routines.[12] The final reason is because it would be too difficult to enforce a copyright for a social dance, seeing as it would be near impossible to police all individuals who perform a dance they did not create.[13] Further explaining the last point, the letter states that social dances “are intended to be executed by the public, not to be performed for the public as an audience.”[14]
Epic Games has cited several cases in its motion to dismiss that further this Copyright Office policy and demonstrate the courts’ reluctance to provide copyright protection for short dances.[15] This reluctance stems from the idea that it would be more harm than good to give copyright protection to ideas that are the building blocks of creativity. Copyright law protects the expression of ideas rather than ideas themselves.[16] These ideas are analogous to words, since they form the basis for sentences that convey the expression of an author.[17] Furthering this policy was the case of Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, in which the court deemed a series of yoga poses to not be protected as a choreographic work due to the fact that it was too simple.[18]
Despite the likely lack of protection afforded under the Copyright Act, Congress probably never foresaw how much money could be at stake in these short dance moves. While courts have denied the idea that “if there is a value, then there is protection,” the amount of money at stake is in the millions.[19] Furthermore, there is a question about the Copyright Office’s third stated reason for denying this protection as applied to this set of facts. Now that these dances are being performed in a video game, does that not mean it is being performed for an audience? For the time being, it looks as though dances can be used by anyone to exploit, for personal enjoyment or high revenue streams.
Currently, 2 Milly is waiting on a response from the Copyright Office, which, based on the “Electric Slide” application denial, will most likely deny his application for copyright registration. Nonetheless, 2 Milly will still be able to bring a copyright claim even if his application gets denied, since the law states that an author only needs to receive a reply, and not necessarily an acceptance, from the Copyright Office to sue.[20] However, if 2 Milly does decide to refile his suit, the court will most likely find that his dance would not qualify for copyright protection. The court would dismiss the claim, stating that it is too short or not significantly creative enough to meet the requirements for protection.
Dismissing 2 Milly’s eventual claim would be a good decision for copyright policy, since protection of these short dance ideas would harm the creative industry. By granting these ideas copyright protection status, it would severely limit what people could create. If ideas as simple as bending your knees and swinging your arms were protected, people would not be able to create new dances without running into potential infringement. If these artists should be compensated, it should be through either trademark or rights of publicity law—not copyright.[21]
[1] Complaint & Demand for Jury Trial, Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. filed Dec. 5, 2018).
[2] Matthew Handrahan, Fortnite Tops Superdata’s 2018 Chart with $2.4 Billion Digital Revenue, Games Industry (Jan. 16, 2019), https://www.gamesindustry.biz/articles/2019-01-16-fortnite-tops-2018-superdata-chart-with-usd2-4b-digital-revenue.
[3] See Complaint at 7; see also Stefanie Fogel, Rapper 2 Milly Is Suing Epic Games Over ‘Fortnite’ Dance Emote, Variety (Dec. 5, 2018), https://variety.com/2018/gaming/news/2-milly-epic-games-fortnite-lawsuit-1203080818/.
[4] Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, slip op. at 12 (U.S. Mar. 4, 2019); see also Adi Robertson, Most of the Fortnite Dance Lawsuits are on Pause, The Verge (Mar. 9, 2019), https://www.theverge.com/2019/3/9/18257385/epic-fortnite-lawsuit-ribeiro-2milly-dance-emote-lawsuits-withdrawn-pause-registration.
[5] Robertson, supra note 4.
[6] 17 U.S.C. § 102(a) (2019); see also 17 U.S.C. § 101 (defining “fixed in a tangible medium” to be when a work’s “embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”).
[7] 17 U.S.C. § 102(a)(4).
[8] H.R. Rep. No. 94-1476, at 54 (1976) (Conf. Rep.).
[9] Letter from Marybeth Peters to Mark Beigelman, 1-24 (June 10, 2010) (noting the history of Richard Silver’s attempts to copyright the Electric Slide, including his original claim that he first published the instructional pamphlet in 1976, then later amending the publication date to 1994).
[10] Id. at 5
[11] Id.
[12] Id at 7-8 (“A dance created for theatrical performance may be comparable to a drama to be spoken and acted, or a musical composition to be performed as an art form by which thought or feeling is conveyed to an audience. Herein lies an essential distinction between those relatively simple dances, such as the steps of a ballroom or other social dance, devised primarily for the enjoyment of the dancers themselves, and those intricate dances such as ballets, devised for execution by skilled performers for the enjoyment of an audience. ‘Choreographic work’ is commonly understood as referring to the latter.”).
[13] Id.
[14] Id.
[15] Motion to Dismiss for Defendant, Ferguson v. Epic Games, Inc., No. 2:18-cv-10110-CJC(RAOx) (C.D. Cal. filed Feb. 8, 2019).
[16] Harper & Row v. Nation Enters., 471 U.S. 539, 544 (1985).
[17] See Zhang v. Heineken N.V., No. 08 Civ. 06506, 2010 WL 11596643, at *4 (C.D. Cal. Sept. 29, 2010) (holding that words and short phrases are not protectable under copyright law).
[18] Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, No. 2:11 Civ. 5506, 2012 WL 6548505, at *12 (C.D. Cal. Dec. 14, 2012).
[19] See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (noting that while time and effort went into compiling a phonebook, the list of telephone numbers did not amount to copyrightable material).
[20] 17 U.S.C § 411(a).
[21] See Cal. Civ. Code § 3344 (stating that it is illegal under California law to use people’s likeness without their permission for the purpose of selling a product); see also Robert W. Wood, Colin Kaepernick Trademarks ‘Kaepernicking’ But What’s It Worth?, Forbes (Feb. 3, 2013), https://www.forbes.com/sites/robertwood/2013/02/03/colin-kaepernick-trademarks-kaepernicking-but-whats-it-worth/#22dafed638eb(showing the potential worth of Kaepernick’s trademark for his “bicep-kissing move” intended to be put on clothing and apparel).