How can you copyright a dance?

Game developer sued: can dances be copyrighted?
Game developer sued: are dances copyrighted?

Update from 05/07/2019

The class action lawsuit against the game developer Epic Games has been dropped for the time being. The plaintiff's attorney confirmed this in a statement. A total of four artists, including the “Prince of Bel-Air” star Alfonso Ribeiro, took action against Epic Games. They saw their copyrights infringed because Epic Games used dances by the artists in its computer game "Fortnite" without mentioning them or giving them financial support. The Supreme Court (the highest court in the USA) has ruled in an independent case that legal action can only be taken against a copyright infringement if the “copyright” has already been registered in advance. Since this was not the case with any of the artists, the lawsuit was dropped for the time being. The lawyer announced that he would continue to stand up for the rights of the plaintiffs, even if they did not have their dance steps protected in advance.

We will follow up on this case for you and let you know when there is anything new.

Dances copied: artists fight back

What do a rapper, an actor, a social media star and a YouTube phenomenon have in common? They are all currently suing the game developer Epic Games in the USA.

They accuse Epic Games of having copied their dances and using them in the online game "Fortnite" without their permission. There is no mention of the artists in the game. Among the plaintiffs is the actor Alfonso Ribeiro, who became known as "Carlton" from the TV series "The Prince of Bel-Air". On the series, Carlton danced a fancy dance that became popularly popular as "The Carlton". This dance is also available in Fortnite. The following video clips show the original "Carlton" and the copy from Fortnite:

The original

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The copy from Fortnite

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A similarity can hardly be denied in this case. The facts are exaggerated by the name of the dance in Fortnite. There the dance move is called “Fresh”. The original title of the series "The Prince of Bel-Air" in America is "The Fresh Prince of Bel-Air".

Another example shows that the developers at Epic Games like to be “inspired” by artists. The case of Russel Horning (also known as the Backpack Kid) was also copied diligently. Horning became famous for his dance when he appeared as the backing dancer for Katy Perry on an episode of Saturday Night Live in 2017. Need a comparison? You're welcome!

Here is the original

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And here is the copy

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The hype about a game: What is "Fortnite"?

So what do all the dances have to do with a video game? First of all, it should be said that there is a lot of money involved. Because Fortnite is one of the most successful games ever. The survival shooter was released in 2017 and since then the game has generated sales of over a billion US dollars! In August 2018, almost 80 million people were playing Fortnite worldwide. And while the game is free, Epic Games' corporate value has increased sixfold. The game is played in the so-called "Battle Royal mode". Up to 100 players are placed on an island and fight for survival. The aim is to eliminate all opposing players and survive as long as possible. The last player or team remaining wins the game. This principle is known, for example, from the film series "The Hunger Games". But how does Epic Games make money when Fortnite is free?

This is exactly where the dances come back into play. Because Epic Games earns the money with so-called in-game transactions. Players can buy virtual currency in-game for real money. With this you can activate visual "enhancements" for the character of the game, for example clothing, emotions and even dances. A character can then express certain emotions while the game is running through dances (for example, through a victory dance).

In May 2018 alone, Fortnite earned around $ 318 million from these in-game transactions. The success of the game made the artists aware of the "dance theft". As the creator of the dances, they should share in the income, according to the artists. However, you are neither involved nor mentioned in any way as the author of the game.

Can dances be copyrighted?

The artists see themselves as the originators of the dances used. But can dances be copyrighted? It is not an easy question to answer. A choreographer could also be the creator of a dance alongside the artists who performed it. In addition, the dance could have been inspired by other dance works. This is also the case with Alfonso Ribeiro: In an interview he stated that he was inspired by the movements of Bruce Springsteen, Courtney Cox and Eddie Murphy for the dance "The Carlton".

In Germany, protected works are named in Section 2 of the Copyright Act, including “pantomime works including works of dance art.” In addition to the human-creative creative activity (so-called creation height), the manifestation of the creator's individuality is also a prerequisite for protection. That means in plain language: Individual movements, dance steps, poses or dance figures are not protected by copyright. However, if individual steps or movements are combined into an individual overall conception or choreography, the protection requirements can be met and the result can be protected by copyright.

Since similar protection requirements apply in the USA as in Germany and the cases described are more movements than complete dances, it is unlikely that they will fall under copyright law.

Even Michael Jackson, the King of Pop, failed when trying to get his world famous "Moonwalk" protected by copyright.

The South Korean rapper PSY proves that there is another way. With his song "Gangnam Style" and the accompanying dance, PSY became famous worldwide. The Gangnam Style video has been viewed over three billion times on YouTube. It ranks fourth among the most successful YouTube videos of all time. What's so special about it? PSY waived its copyright to the song. The song itself, the video and the unmistakable dance are therefore freely usable for everyone (by the way, the "Gangnam Style" is also included in Fortnite). When the rights were released, the Gangnam Style phenomenon became a worldwide viral hit.

The plaintiffs' attorney in the present case has already announced that other artists want to take action against Epic Games and are preparing a class action lawsuit. Whether this will be successful remains to be seen, but is unlikely due to the above-mentioned conditions.

IT liability also protects against copyright infringement

Even if this case is anything but ordinary and the developers of Fortnite can safely afford a long copyright battle with the artists - copyright infringements can happen quickly and can put your own business at risk. If you want to know what you as an IT professional should look out for when it comes to copyright, then click into our video:

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IT liability through exali.de protects your business if something goes wrong in terms of copyright. In the event of a warning, the insurer will check at its own expense whether the claim is justified and pay justified compensation.

Of course, not only as an IT freelancer do you run the risk of violating copyright law. That is why all of our professional liability insurances cover violations of copyright law via exali.de.

If you have any questions about the right insurance coverage for your business, just give us a call!

 

© Jan Mörgenthaler - exali AG