We wrote last year about several copyright
infringement suits filed against Epic Games, the marker of the Fortnite game,
by individuals who became associated with a particular dance move, whether it
be their sole claim to fame or not (see here
and here).
One of these plaintiffs is rapper Terence
Ferguson, aka 2 Milly, who is at the origin of the Milly Rock dance.
Dare we say he created it and that the dance is protected by copyright? More on
this later. In any case, you can find a tutorial here.
2 Milly claims that the “Swipe
It “dance, an “emote” which in 2018 appeared in season 5 of the
game, infringes his copyright. Such emotes, as explained by Defendant, “are movements that an avatar performs to
express emotions in the game.”
Epic Games attorneys have now moved
to dismiss the case (HT Eriq Gardner for posting the memo online). They claim,
in support of the motion that Plaintiff failed to state a claim. They also moved
to strike the case under the California anti-SLAPP statute, claiming that the
copyright infringement suit was filed to discourage Defendant’s speech in
connection with a public issue. Video
games are speech, and Defendant cites the U.S. Supreme Court 2011 Brown v. Entertainment Merchants Ass'n case,
which found video games to be protected by the Fist Amendment.
“No one can own a dance step”
One of defendant’s arguments is that “no one can own a dance step” and that “Plaintiff’s claims is based on his assertion
that he has a monopoly on a side step with accompanying swinging arm movement
that is then repeated on the other side.”
Plaintiff claims his work is protected by
copyright. Defendant claims they are mere steps, which are not protectable:
“[c]opyright
law is clear that individual dance steps and simple dance routines are not
protected by copyright, but rather are building blocks of free expression,
which are in the public domain for choreographers, dancers, and the general
public to use, perform, and enjoy.”
This argument differentiates the steps from
the choreography. The first are the building blocks of the second. Indeed, they
are many steps in dance, and they are used by many different dancers. For
instance, Michael
Jackson did not create the moonwalk, but he performed it so well
that he is associated with it.
Choreography is protected by copyright in
the U.S., but this is fairly recent, as the 1909 Act did not protect it.
Defendant cites paragraph 805.1 of the Compendium of U.S. Copyright Office
Practices, which explains that a choreographic work is “the composition and arrangement of a related
series of dance movements and patterns organized into a coherent whole” and
which points out that Congress did not intend to protect “simple dance routine.”
Are
the two works substantiality similar?
Defendant describes the 2 Milly dance step as
being:
“a side step to the right while swinging the left arm horizontally
across the chest to the right, and then reversing the same movement on the
other side”
Defendant describes the Fortnite’s “Swipe
It” as:
“consist[ing] of (1) varying
arm movements, sometimes using a straight, horizontal arc across the chest, and
other times starting below the hips and then traveling in a diagonal arc across
the body, up to the shoulder, while pivoting side to side on the balls and
heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling
motion of the hands and forearms between swipes.”
As you can see, “Swipe It” requires many
more words and must thus be more complex and thus different from the simple “Milly
Rock” step, right?
To determine substantial similarity, courts
in the Ninth Circuit use an extrinsic similarity two-part test, where plaintiff
must show that the works are substantially similar under both the extrinsic
test and the intrinsic test. The extrinsic test is an analysis of the
similarities of the two works’ expressive elements, after the courts have
filtered out the elements which are not protected by copyright, such as material
in the public domain. The intrinsic test analyzes whether an ordinary
reasonable person would think that the two works are substantially similar in
“total concept and feel.” Defendant claims that the extrinsic test is not
satisfied and that thus the case must be dismissed.
Is
the right of publicity claim preempted by the Copyright Act?
Defendant is also arguing that Plaintiff’s
right of publicity claim is preempted by the Copyright Act and should thus be
dismissed, citing Maloney
v. T3Media, where the
Ninth Circuit affirmed dismissal of a right of publicity claim is proper if
such use is not “independent of the display, reproduction, and distribution of the
copyrighted material.” It remains to be seen if this is the case here as
well.
Copyright
Office refuses to register the Milly Rock Dance
Meanwhile, the Copyright Office has refused
to register the Milly Rock dance, writing that “[c]horeographic works are
typically performed by skilled dancers for an audience. By contrast, social
dances, such as ballroom dances, line dances, and similar movements are not
created by professional dancers. They are instead intended to be performed by
the general public for their own enjoyment.”
By doing so, the Copyright Office seems to
place dance in a somewhat lower echelon than painting and illustrative art.
Indeed, the Supreme Court explained in 1903 in Bleinstein
v. Donaldson Lithographing Co. that “persons trained only to
the law” should not “constitute
themselves final judges of the worth of pictorial illustrations.” Terpsichore
is one of the muses, after all, and there is not even a muse for pictorial art…
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