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Fortnite's dance emotes – any cause for complaint?

Posted on 21 January 2019 by Max Nicolaides and Peter Nunn

Fortnite's dance emotes – any cause for complaint?

The use of famous dance moves within the hit game Fortnite has recently hit the headlines. Rapper 2 Milly, Alfonso Ribeiro (who played Carlton from The Fresh Prince of Bel-Air), and the 'Backpack Kid', Russell Horning, have all brought claims in the US against Fortnite's publisher, Epic Games Inc., that 'emotes' (in game animations) within Fortnite reproduce their signature dance moves. For example, 2 Milly alleges that Fortnite's "Swipe It" emote is a copy of his dance move, the Milly Rock, and infringes his copyright in that move. 

While these claims are being pursued in the US, this article considers what the position would be in the UK. The signature dance moves could be protected by either copyright or trade marks.  Both, however, present challenges:

  • For copyright the difficulty lies in showing that the move is sufficiently substantive to attract copyright protection – or that it was a key part of a longer dance routine. 
  • Trade marks (which, unlike copyright, need to be registered) offer a potentially stronger means of protection, but come with the challenge of showing that the alleged infringer is using the mark as some form of indication of the source of the goods. This could be straightforward if the dance emotes were used to promote Fortnite, but is much harder to judge when they just appear within the game.

Copyright

A "work of dance or mime" is expressly protected by UK copyright law as a 'dramatic work' provided it is a 'work of action' which is 'capable of performance'. An entire dance routine for a song would undoubtedly be protected by copyright, provided it is sufficiently original and has been recorded in a material form, as would the music videos produced for each song. 

It is less easy to say whether a short series of dance moves would be protected by copyright in their own right. While the courts will not judge the dances based on their artistic qualities, they will assess whether or not they are substantive enough to be conferred copyright protection. Essentially a line has to be drawn somewhere between any bodily movement, and a work of dance. We are not aware of any English cases which have considered this. For its part, the US Copyright Office has said that a "short dance routines consisting of only a few movements or steps" cannot be registered under US copyright law, "even if a routine is novel or distinctive."

However, the copied dance moves could also form part of a larger copyright work. To infringe copyright, one does not have to reproduce the whole work – only a "substantial part". What constitutes a "substantial part" is assessed qualitatively, as well as quantitatively – i.e. what matters is whether a key part of the work has been taken, not just whether a quantitatively large part has been copied.  Reproducing not very much of a work at all can constitute the taking of a substantial part: for example, the European Court of Justice held that reproducing 11-word extracts from newspaper articles, by news aggregation services, could infringe the copyright in those articles. 

If the copied dance move is a key part of the whole work of dance (think Michael Jackson's Moon Walk when performing Billie Jean), then that could well infringe the copyright in the whole work.

All of this assumes that the likes of 2 Milly own any copyright which may subsist in their dance moves. In the case of the Fresh Prince of Bel-Air star, for example, any rights in Mr Ribeiro's dance routine may be owned by the show's producer – or whoever created the dance move. Simply performing the moves in the TV show would not mean Mr Ribeiro owns any copyright in them. 

The claimants would also need to show that the dance routines were original to them – i.e. that they were their own intellectual creation. If any of the routines were copied from someone else’s dance routines , then the requirement of originality, which must be met for all copyright works, is unlikely to be satisfied. 

Trade Marks

A dance move could also potentially be registered as UK or EU trade marks. 

While it has been theoretically possible to register "non-traditional" trade marks such as dance moves or shop layouts as trade marks for some time, actually doing so was made very difficult by the requirement under UK and EU trade mark law that a mark must be "capable of being represented graphically". Given that, previously, neither the UK nor the EU's trade mark offices accepted video files, a trade mark applicant had to either file a series of pictures depicting different stages of the move, or describe it in words. While these might result in trade mark registrations (for example, the chef nicknamed Salt Bae sought to protect, as an EU trade mark, his signature means of sprinkling salt on dishes through a series of individual stills from a video), it is highly questionable how effective such trade marks are at protecting the actual move the pictures attempt to depict.

However, the requirement that a mark must be represented graphically has now been dropped. Instead, a mark only needs to be represented in a manner which enables the public "to determine the clear and precise subject of the protection afforded to its proprietor". In addition, the mark can "be represented in any appropriate form using generally available technology". This includes video and sound files, so someone wishing to register a dance move could "represent" it by providing a video file of him or her performing it, whereas previously they would have had to try to describe the moves in words or pictures – which is extremely difficult.

Of course, trade marks, unless they are extremely well-known, only give a monopoly over the particular goods and services for which they are registered. So, for example, if 2 Milly had registered the Milly Rock for music services, the use of the same dance as an emote within a computer game may not infringe that trade mark. However, if it was registered for "computer games", there would be a much higher chance that it would.

There would still be a question over whether use of the dance move as an emote within a computer game, even if the dance move was registered for computer games, would constitute "use" of the mark. "Use" of the registered mark, in the sense of use as a trade mark (e.g. as an indication of origin) is necessary for there to be infringement.  If the emote was used in marketing material for the game - such as in TV adverts - it almost certainly would. However, where the registered dance move is simply performed by one of the in-game characters whilst playing the game, would that be use in connection with the offering of goods or services? It would probably boil down to how extensively and prominently the emote was used; if it was performed repeatedly, there would be more chance of the trade mark being infringed.

How much money could these claims be worth in the UK?

Fortnite is a free-to-play game. The game generates revenue from selling "V Bucks" – the game's virtual currency which can then in turn be used by players to unlock in-game content, such as cosmetics and emotes.

For the dances that can be unlocked directly with V Bucks (typically by paying $5-10), the damages could be set at the profit generated through the sale of the emote.

However not all of the dances can be purchased. The Milly Rock dance, known as the Swipe It emote, is unlocked as an in-game reward - it cannot be purchased. Thus, there is no profit which is directly attributable to its use. Damages would therefore be likely to be based on a "reasonable royalty", being calculated as an amount that 2 Milly, as a willing licensee, would have been prepared to accept from Epic Games in return for permitting it to use his copyright work or registered trade mark.

And Finally

There is no sign of the rush of claims abating. This week it has been reported that a previously unknown child, known as the "Orange Shirt Kid" is also suing Fortnite for using his dance move. His case is different as he actually entered his dance move into an official Fortnite competition, the winner of which would have their dance move added as an emote to the game. He did not win, but his move was incorporated nonetheless. The child's chances of substantial compensation seem slim, as the competition's terms provided that contestants would not receive any money for their entries.

Regardless of their merits, the claims seem to be having an effect: the publisher of the car racing game Forza Horizon 4, has suddenly removed from the game emotes of the dance moves of Mr Ribeiro and Mr Horning.

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