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…