Dec 20, 2018

Fortnite (Epic Games) vs. Rap Artists: Legal Opinion On the Intellectual Property Use of Artists’ Dance Moves


Abstract
This article considers the actions of the developers of the game—Fortnite—Epic Games, whereby it incorporated the unique dance moves of known rap artists in a version of its game (Season 5, Fortnite released in July 2018), monetizing it, without permission from the artists. Since these dance moves are intellectual creations, thereby invoking intellectual property law issues, the article answers the question whether there is any form of intellectual property that protects dance moves that could allow the rap artists to seek legal remedies. 


The article answers this question in the negative, confirming that although unique dance moves could be afforded intellectual property protections, in this case, there is no such protection, and efforts to seek legal remedies would be futile.

Background
Fortnite through its two game modes  hits the gaming market in October 2017, first on PC, PlayStation 4, and Xbox One, later, it was introduced to the iTunes App store (in April, 2018) . Ever since then, the rest has been history, the game has broken records in the history of gaming including the number of players who have jumped on it, and most importantly, in terms of revenue. For example, in March, 2018 alone, Fortnite made 223 Million USD, and in May, 2018, broke its own record for the highest revenue made by a game when it made 318 Million USD . It should be mentioned quickly that Fortnite itself is a free-to-play game, and requires no purchase, at least to start playing the game. However, progressing through the game requires “Battle Pass”. These “passes” are only obtainable by using what is called V-Bucks—an in-app currency which can be obtained itself by purchasing them with real-world currency—USD, Pounds, Euros etc, or completing certain missions and other achievements, especially in the Save The World Fortnite mode. The V-Bucks can be used to ensure the continuance of playing or purchase of cosmetics (called Emotes), including dance moves for the third-party cartoon character a player is using/controlling in the game. Through these in-app purchases, today, Fortnite is worth 1 Billion USD . 

This article is about the unique dance moves being sold by Epic Games within the Fortnite game. For example, one of the dance moves (commonly known as “Milly Rock”) is being sold at the equivalent of $10. And for a game platform that has 78.3 million monthly players , there are chances that players purchase these dance moves. Importantly, whereas Epic Games had through its representative conferred that the “Battle Pass” that included the “Swipe It” Emote (an in-game rename of the “Milly Rock” dance move) was removed due to season 5 coming to an end and will never be sold or made available again, users who had previously unlocked or purchased the “Battle Pass” will still have access to it. So, in essence, the issue raised in this article is not moot, more importantly, the game still has other unique dance moves of well-known rap artists, including that of Snoop Dogg.

The concern for monetizing (without permission) the unique dance moves of rap artists as 2 Milly (who created the “Milly Rock” dance moves), Snoop Dogg (who created the “Drop It Like Its Hot” dance moves), Bloc Boy JB (who created the “Shooter” dance moves) first visibly came from the another rap artist—Chance The Rapper—in a July 13, 2018 tweet, where he suggested sharing the revenue made from the sale of the dance moves (or Emotes) with the actual artists who created the said dance moves. Of course, Epic Games refused to share any revenue, and the issue just created a lot of reactions online from other game players who most commonly feel the revenue should be shared, or at least that the artists should be referenced. These “mixed concerns” since July, 2018 when the season 5 of the Fortnite game was released have not resulted in players boycotting Fortnite, instead, the number of players has increased. It seems the artists whose “intellectual property rights” have been infringed are expected to pursue their legal actions as the game players do not want to be bothered.

Ultimately, in November, 2018, 2 Milly, one of the rap artists whose unique dance moves—“Milly Rock”—has been monetized without his permission threatens to sue Epic Games for intellectual property infringement, and intends to seek compensation . The question then is, “can Epic Games be held liable for intellectual property infringement in this case?”

Legal Opinion
First, the relevant intellectual property mechanism for protecting a unique dance move is copyright, and the closest type of copyrightable work is “choreography”. The US Copyright Act expressly protects “choreographic works” under its copyrightable subject-matters . So, what is the legal definition of a “choreographic work” ?. The Copyright Act has no such definition, which means the court, legislative history, and/or the Copyright Office might have to offer guidance on the definition or what will constitute a copyrightable “choreographic work”. The US “House and Senate Reports” had averred that a choreographic work has "fairly settled meanings," and included that, it not "necessary to specify that 'choreographic works' do not include social dance steps and simple routines."  This definition or suggestion is not itself clear, but at least, it is clear that a choreographic work is seen as an ‘embodiment’ which could include social dance steps and simple routines.

However, it must first be noted that prior to the US Copyright Act, of 1976, choreographies were often registered in the US Copyright Office, just not as choreography, rather as dramas. The 1976 Act made choreography expressly copyrightable following a study made to the sub-committee of the Committee of the Judiciary Copyright on IP issues which includes choreographic works . To further seek a definition, in 1952, Hanya Holm the first person to register a choreography for the Broadway musical “Kiss Me Kate” wrote a letter to the sub-committee highlighted above. In that letter, dated January 2, 1960, she made three points, that choreography should be subject to copyright; choreography should be named as a separate category of copyrightable matter; and the term “choreographic works” should include dramatic concert pieces, lyric-dramatic concert pieces, satirical concert pieces, and dance in operas, musical comedies, and revues. (Italic added by the writer). 

Turning to ordinary English meaning of the term “choreography”. Merriam-Webster defines the term as “1 : the art of symbolically representing dancing; 2a : the composition and arrangement of dances especially for ballet b : a composition created by this art”. The American Heritage Dictionary also defines the term as "1. the art of creating and arranging ballets or dances. 2. The art and technique of dance notation. 3. The art of dancing."

What is common in these definitions is the use of the words art, dance, sequence/arrangement etc. From this definition, it is clear that what the Copyright Act intended is more than a single dance move as argued by the rap artists whose unique dance moves have been appropriated. It is no wonder that in a Circular made available by the US Copyright Office on “Copyright Registration of Choreography and Pantomime”, the Office asserted that “some categories of dance…do not fall within the subject matter protected under the Copyright Act even though they may be unique.” Also, that “individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. The U.S. Copyright Office cannot register 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.” Finally, “for copyright purposes, choreographic works are a subset of dance and are not synonymous with dance. The drafters of the copyright law also made clear that choreographic works do not include social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience.”

Out of the two requirements for copyright, originality, and fixation. It is obvious that the “originality” requirement which borders on the creativity or the skill/labour expended on a work is the reason why a dance move would not be copyrightable, and this is expected because of the level of creativity required by US Courts in regards to the originality of work requirement . Even in jurisdictions where skill/labour (or “sweat of the brow”) test is the standard for originality , it would be almost impossible to ‘pull’ copyright protection for a single dance move. Clearly, a level of sophistication is expected from a work intended to be registered as choreographic work.

The reasoning behind denying copyright protection in simple dance moves, albeit unique, is reasonable. It would abuse the creativity, effort, and skills expended by real choreographers in an opera setting for example, and every one with a simple movement of hand or body would be able to enforce copyright infringement when another person did a similar body or hand movement—considering that copyright is automatic. Allowing the copyright of a simple dance move would mean a sentence uniquely crafted by a writer would be copyrightable as well, including a whole paragraph, or a whole book written.

Conclusion
An effort to claim copyright infringement by Epic Games is futile and is dead on arrival as there is no copyright infringement. At best, in order to ascend to the level of “originality” presupposed by the law, a simple dance move is just a brick in the wall of what is required, and there has to be a sequence of different moves, expressive patterns that should ultimately culminate into a “choreography”. 

However, another argument could be made that where the unique dance moves are used as a trademark (i.e. used in the course of trade), the argument is taken away from copyright discourse, and to trademark discourse in lieu. The answer under a trademark IP mechanism is also no—a single unique dance move or even a choreography (viable under Copyright) used in the course of trade cannot be trademarked, mainly because it will not perform the primary function of trademark—which is to show the origin of a product or service. This rationale itself is controversial. A dance move can suggest the origin of goods or services, but obviously, not always, and it seems, for this reason, it is not safe to allow the trademark of a dance move. It is however certain that a dance move name itself can be trademarked, e.g the “Milly Rock” name attributed to the dance created by the rap artist “2 Milly”. If Epic Games thus used the name “Milly Rock” in the Fortnite game to describe the dance, then, this would be a trademark infringement. However, Epic Games has precluded this scenario and instead renamed the dance step as “Swipe It” instead of “Milly Rock” to avoid potential liability or intellectual property issues. Aside from this, currently, the dance name itself is only associated with 2 Milly, it is neither registered as a trademark nor is the dance move name used in the course of trade. 

This case shows one of the laxities of intellectual property as often argued by the subject’s critics. A work that does not meet the standard of the different IP mechanisms even though useful or could make millions are being “thrown away”, and others can enjoy a free-ride of it. In an ideal system without copyright, but with intellectual property in place, an appropriation of a unique dance step, monetized, and which contributes to a windfall income for the person who appropriates should attract some compensation or at least the moral right of attribution. 

Epic Games conduct offends ethics in business, but not law. 

References 
 Fortnite: Save The World, and Fortnite: Battle Royale  https://www.google.com/search?q=fortnite+apple+release+date&oq=fortnite+Apple+release&aqs=chrome.0.0j69i57j0.5350j0j7&sourceid=chrome&ie=UTF-8
  https://www.statista.com/statistics/865601/fortnite-revenue/
  https://9to5mac.com/2018/07/19/fortnite-one-billion-revenue/
  https://www.polygon.com/fortnite/2018/9/20/17884036/how-many-fortnite-monthly-players-2018
  https://www.telegraph.co.uk/technology/2018/11/19/rapper-threatens-sue-fortnite-maker-stolen-dance-move/
  See section 102(a)(4), US Copyright Act
  In law, the legal definition of a word as stated in the relevant section of the law, e.g. in the law’s Interpretation Section would ordinarily have preference over the ordinary English meaning.
  S. Rep. No. 473, 94th Cong., 1st Sess. 52 (1975) (hereinafter cited as S. Rep.); H.R. Rep. No. 1476, 94th Cong., 2nd Sess. 53-54 (1976)
  STUDIES PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS 01' THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE EIGHTY-SIXTH CONGRESS, SECOND SESSION PURSUANT TO S. Res. 240 STUDIES 26-28 28.
  https://blogs.loc.gov/copyright/2017/08/copyrightchoreography/
  See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340
  e.g. the UK



Gbenga Odugbemi

Reactions: