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Two new recent copyright lawsuits involving dance moves, including one by a rapper challenging the manufacturers of the one of the most popular video games of all time, have led to questions about the extent copyright protection can extend to dance. On the surface, there’s an easy answer: the Copyright Act protects choreographic works. However, as typically happens in high-profile copyright litigation, application of the rules can be murky and policy-driven.
Several years ago, rapper 2 Milly released his “Milly Rock” video, where he danced outside in his Brooklyn neighborhood. The song, and his dance move, became a hit. According to the complaint, he’s licensed the Milly Rock dance move to other artists for concerts and performances.
Epic Games released Fortnite Battle Royale in 2017, a battle royale type video game where players can compete remotely and gather weapons to kill each other until the last one is alive. The game can be played for free, and Epic Games makes various features available for money, including a wide variety of dances that users can have their characters perform. Among them is the “Swipe It” dance, which appears to be lifted directly from the Milly Rock video. 2 Milly is alleging that Fortnite dance infringes his copyright on the dance move, and that Epic Games violated his right of publicity by using his likeness.
The Milly Rock is hardly the only dance borrowed by Fortnite, whose characters perform everything from the “Carlton” from Fresh Prince of Bel-Air, to Elaine’s happy dance on Seinfeld.
Big Freedia’s is not a copyright infringement lawsuit, at least not yet. Freedia is seeking a declaratory judgment. That is, a judgment that defendant, Choreographer Dejarnetti owns no rights to Freedia’s performances. Big Freedia is a New Orleans musician, producer, reality TV actor, and known as the “Queen of Bounce”. Freedia hired Dejarnetti to develop stage performances, including the choreography. According to the complaint, Dejarnetti spent time in the recording studio and offered suggestions.
Dejarnetti is now claiming authorship in Freedia’s choreography, as well as the musical works and possibly sound recordings based on his contributions in the studio. He later demanded credit as co-author and co-producer of Freedia’s songs, and sought fees to allow Freedia to continuing using his works. It’s unclear based on this complaint what copyrightable contributions Dejarnetti claims to have made, but we will likely find out more when he responds. If Dejarnetti really does believe he owns rights, he will counterclaim for a declaration of his own rights, and perhaps for copyright infringement.
(If you’re interested more in authorship rights based on in-studio contributions, I’ve written in detail about Ulloa v. Universal, a lawsuit brought by the woman who sang the chorus for Jay Z’s “Izzo/Hova”).
So is a dance “copyrightable”? The quick answer is relatively uncontroversial: a “choreographic work” is a work protected under the Copyright Act, so yes. But a simple dance move is probably not sufficient for copyright protection. The Copyright Office defines a protectable choreographic work as “a composition and arrangement of a related series of dance movies and patterns of dance movements and patterns organized into a coherent whole.” However dances aren’t protected if they are:
- “Commonplace movements or gestures” like the “basic waltz step” or “second position in classical ballet”
- “Short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”
- “Functional physical movements,” even if they are “feats of physical skill or dexterity.”
Copyright infringement actions over dance routines or less common than many other types of expressive works, so there’s less authority to rely on. The most well-known copyright decision involves ownership of Martha Graham’s choreographic works. In that case, most of her choreography were found to be owned by the Martha Graham Center of Contemporary Dance as works for hire, a ruling that could be helpful to Freedia.
So although there is a possibility that the Milly Rock will be deemed insufficient for copyright protection. The complaint notes that his registration with the Copyright Office is pending, so we don’t yet know if he’ll have a presumption of validity from the Copyright Office. Although a copyright registration is statutory required to start an infringement lawsuit, federal courts in California follow the 9th Circuit’s “application” approach, meaning that he can file his lawsuit after submitting the appropriate materials to the Copyright Office, and before registration is granted (the Supreme Court has taken up the issue of whether this is sufficient, but even if the Supreme Court disagrees its ruling is unlikely to apply retroactively here).
But there’s really more to the Milly Rock/Fortnite controversy than the copyright issues. Fortnite is one of the most popular video games ever. Its well-documented that its lifted dozens of dances from other sources, often as identical to the original source as possible except for the title. There are multiple side-by-side comparisons for on. Dances are directedly taken from “Carlton” and Will Smith’s dance from Fresh Prince of Bel-Air, Turk’s BellBivDevoe inspired moves in Scrubs, Jim Carrey in Dumb and Dumber, Snoop, Job’s chicken dance from Arrested Development, Gangnam Style, and many others made famous in viral videos and memes. It’s no secret that the video game manufacturer copies these dances, and it wouldn’t be credible for Epic Games to claim they were independently created. Some entertainers have accused Epic Games of culturally appropriating dances by people of color.
And all of that matters because, even though most of the lifted dances are probably not eligible for copyright protection, any kind of adverse ruling might open up floodgates. All it would take would be single ruling on a motion to dismiss allowing the copyright ruling to proceed. If 2 Milly or another mimicked performer convinces a judge that their dance might be protected by copyright, Epic Games might prefer to resolve the matter quickly and seek licenses where appropriate. I don’t know if that needs to happen, because there’s a good chance the Milly Rock is found to be unprotectable. But that doesn’t change the reality that an homage can often be a great risk.
Mark Jaffe is the managing partner at TorMark Law, where he advises creative companies on use of copyrights and trademarks, and he litigates copyright infringement matters on behalf of creative professionals. He is not associated with the Jaffe Rock (1:32). His son convinced him to create his own Fortnite profile and he’s still getting the hang of it.
We are excited to announce that we are officially collaborating with Shane MacDougall of Tactical Intelligence to bring extra technical expertise to our clients. In his own words Shane explains his background and what his company, Tactical Intelligence brings to our firm:
My partners & I at Tactical Intelligence are very pleased to be working with Tor Ekeland Law. I’ve known Tor for several years, and can’t wait to help him continue his defense of cybercrime cases. Our firm has a long background in doing investigative work in the digital underground world, from unmasking attackers in high profile hacking cases, to some pretty extreme skip tracing incidents. We also bring to the table almost 70 years combined experience in the hacker underground, including red teaming and blue teaming. Needless to say, our digital “reach” is very extensive.
We have instructed law enforcement and intelligence agency personnel from around the world on open source intelligence (OSINT), and we’ve even won multiple contests at hacker conferences using our OSINT techniques. Bringing this capability into Tor Ekeland Law will, we feel, be one of the most synergistic integrations we’ve ever experienced. We love the underdog, and we’re extremely worried about the seemingly exponential control and misuse of the internet, and the courts, by government. We haven’t been afraid to back some of Tor’s most unpopular defendants publicly, when the criminal violations being alleged by prosecutors were warped interpretations of how internet security works.
Our goal is to help complement Tor’s team with a technical depth particularly focused on the information security and hacking realm, in order to provide an additional level of defense for all of his firm’s clients. We can’t wait for the next fight to come our way. Bring it!
Shane MacDougall – President, Tactical Intelligence Inc
The REACT Task Force:
REACT is short for “Regional Enforcement Allied Computer Team.” REACT is a multi-jurisdictional computer crime partnership between state and federal law enforcement as well as private tech companies. See “REACT Mission Statement” In 1997 the California DOJ established REACT in response to fears over the increasingly widespread use of the internet and potential computer crimes.
REACT investigates, arrests, and prosecutes ‘high tech’ crimes ranging from network intrusion, theft & resale of computer hardware, intellectual property theft, cryptocurrency crimes, software piracy and the like.
Currently the Firm has cases with REACT out of Silicon Valley.
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This is an excellent biography that puts his work in the context of Nietesche's life. Sympathetic but snarky where appropriate, Prideaux Incisively analyzes Nietzsche’s social and psychological mileui without reductionist overemphasis of any one particular factor. The final chapters on his collapse into mental illness and his sister’s perversion of his philosophy for the Nazi cause are sad, riveting, and revolting. If you’ve ever wondered about this important philosopher, this is a good book to start with. I had a hard time putting it down. -Tor Ekeland