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Copyrights, Dance Moves, and Video Games

01 Jan Copyrights, Dance Moves, and Video Games

Fortnite is the most popular video game in the world right now. Although it is primarily a first-person shooter game, the element that currently has intellectual property lawyers scratching our heads relates to the dance “emotes” – popular dance moves performed by on-screen characters. A question has been raised in lawsuits over whether or not these moves are owned by their original performers.

Copyright and Dance

US Copyright law protects “choreographic works” that are “original works of authorship” and that are “fixed in a tangible medium of expression.” This protection is relatively new – until the Copyright Act was amended in 1976, choreographers could only attempt to protect their works as a “dramatic composition.”

Choreographic works are defined as “the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music,” and dance is defined as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.”

A classic example of copyrighted dance moves are the ballets choreographed by George Balanchine, whose trust works to license his works to performance groups around the country.

Can Dance Moves be Copyrighted?

The standard legal answer to this sort of question is, it depends.

Social dance moves or simple routines, such as a waltz, heel-click, or even a yoga sequence can not be copyrighted, because they are not original works of authorship. There is a clear difference between these relatively simple or classical moves that have been around for generations, and more complicated works, such as The Nutcracker.

A work’s length is not a deciding factor as to whether or not a work of original art is eligible for copyright protection. Although one writer allegedly had difficulty copyrighting a tweet due to its lack of original content, many haikus (three-line poems containing 17 syllables) do enjoy copyright protection.

There are a number of pending lawsuits against Epic Games, the creator of Fortnite, that may decide this new issue. Because choreography has only been protectable for a relatively short time, we do not have much precedence to know which way a court might rule.

If a federal judge rules that short dance moves are copyrightable, it may have an interesting effect on the art form. On the one hand, innovations in dance often rely on interpretations of what has come before, including Michael Jackson’s performance of the Moonwalk, a version of which was performed in 1932 by bandleader Cab Callaway. However, increased protections may also encourage emerging stars to create their own unique signature moves.

Other Video Game Copyright Issues in the News Today

This is not the first time the question of copyrighted works has arisen in video games. Sports games featuring digital versions of popular players such as LeBron James, Mike Tyson, and Conor McGregor have recently been in the spotlight due to the tattoos these players carry on their arms. However, these players typically do not own the copyright for their tattoos, making video game makers potential targets for copyright lawsuits. As the digital world continues to mirror the real world, it is likely that we will see new and interesting developments in copyright law.

This article is for informational purposes only and does not provide legal advice. If you have questions regarding copyright ownership or licensing in video games and electronic entertainment, you should contact the experienced attorneys at Heerde Blum LLP today.