Real life Fortnite battle

Rapper Terrence Ferguson, otherwise known as ‘2 Milly’, is not happy with popular video game Fortnite for stealing his dance move. This issue is not one that can be resolved on the battlefield – 2 Milly filed a Californian lawsuit against developer Epic Games for infringing his copyright in the ‘Milly Rock’ dance move. Others, including Alfonso Ribeiro (the actor who portrayed Carlton in the 90s TV show ‘The Fresh Prince of Bel-Air’) and the ‘Backpack Kid’ (an Instagram sensation amongst the youth, they tell us) followed Ferguson and filed their own lawsuits against Epic Games.

The lawsuits have been (temporarily) dropped for administrative reasons, but still provide an insight into a unique issue in this space.

Background

In 2015, Ferguson’s ‘Milly Rock’ dance move went viral. Imitated by celebrities such as Rihanna, Travis Scott and Wiz Khalifa, the hip-hop two-step (which involves the swinging of arms and spinning of fists) quickly gained popularity. However, the move has recently infiltrated the virtual world without his permission. Now performed by avatars in the video game Fortnite, it has been rebranded as a victory dance ’emote’ called ‘Swipe It’. From 12 July 2018, the ’emote’ could be unlocked by gamers after purchasing an in-game ‘add on’ for 950 ‘V-bucks’ (approximately AU$13.20). While many viral dance moves, particularly those originating from African-American talent, have been revived by the video game, no formal issue had been taken with their use. For example, a dance move from Snoop Dogg’s ‘Drop It Like It’s Hot’ music video is called ‘Tidy’ in Fortnite (and to date, the artist has not objected to this).

Unlike Snoop, Ferguson recently complained that through its unauthorised misappropriation of the ‘Milly Rock’, Epic Games has unfairly profited from exploiting his protected creative expression and likeness. His lawsuit against Epic Games raised five causes of action, including direct and contributory infringement of copyright, violation of the right of publicity under Californian common law and civil code, and unfair competition. The rapper sought injunctive relief and damages, including the profits attributed to Epic Games’ improper use of the ‘Milly Rock’ and his likeness.

The lawsuits filed by Ribeiro (relating to his famous ‘Carlton Dance’ from ‘The Fresh Prince of Bel-Air,) and Anita Redd acting on behalf of her son Russell Horning (the “Backpack Kid”, who created a dance called ‘The Floss’) made the same claims as Ferguson’s (unsurprising, given the same law firm was representing all 3 of them).

The lawsuits effectively claimed that the relevant dance moves were created by the plaintiffs, and were clearly identified with them. They claimed that Epic Games was (is) earning money from these creations, and undermining their value for the authors.

Copyright in America

In America, copyright protection arises when an original work is fixed in some tangible form. Protection can also be gained through registration at the United States Copyright Office (USCO), which is a pre-requisite to the filing of an infringement lawsuit. Copyright grants an owner the exclusive rights to make copies, sell, use and perform a work. Any unauthorised use of the work that violates these rights will amount to infringement. Ferguson is currently in the process of registering the ‘Milly Rock’ dance move, submitting an application with the USCO on 4 December 2018. That application is still pending.

On 4 March 2019, the US Supreme Court ruled that owners must complete their registration with the USCO before they can bring infringement proceedings – a decision which has resulted in Ferguson, Ribeiro and Horning withdrawing their original lawsuits against Epic Games.

A wide range of works resulting from the performing arts, such as albums, lyrics, audio books, live concerts, screenplays and sound recordings, are commonly registered and protected by copyright. Choreography falls within this category, and it appears to be the type of work most relevant to Ferguson’s ‘Milly Rock’. Choreography is the composition of a related series of dance moves organised as a coherent whole. According to the USCO, common elements of choreography include:

• Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage;
• A series of dance movements or patterns organised into an integrated, coherent, and expressive compositional whole;
• A story, theme, or abstract composition conveyed through movement;
• A presentation before an audience;
• A performance by skilled individuals; or
• Musical or textual accompaniment.

Ferguson’s ‘Milly Rock’, recorded in the corresponding music video, satisfies the originality and tangibility requirements for protection. It also appears to feature a range of the abovementioned elements and therefore could qualify as choreography. However, the USCO has also expressed an inability to 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. This certainly throws doubt upon the current application to protect the unique move, and ultimately, Ferguson’s entire case. Interestingly, before the lawsuits were withdrawn, one of the documents filed by Epic Games in response was a copy of USCO correspondence indicating that a copyright registration application filed by Ribeiro for a work titled “The Dance by Alfonso Ribeiro – Variation B” was refused by the USCO on the basis that the work submitted for registration was a simple dance routine and as such, not registerable as a choreographic work.

If it is found that copyright does attach to the ‘Milly Rock’, it is likely that the associated rights have been breached by Epic Games. The developer’s taking of the move and using it in Fortnite arguably amounts to the making of a copy.

Though Courts in the US have been asked to determine whether copyright exists in a sequence of yoga positions (a question determined in the negative), the current issue of whether copyright exists in a dance move is yet to be judicially considered. The cases of ‘Milly Rock’, ‘Carlton Dance’ and ‘The Floss’ have attached to them a further element in that the accusations outline the copying of a human’s dance move into a digital format. It will be interesting to learn of the outcome, assuming the cases are re-filed if and when the owners of the moves in question acquire copyright registrations courtesy of the USCO.

The Australian position

In Australia, copyright protection attaches to a range of original works under the Copyright Act 1968 (Cth) (Act), including dramatic works. A dramatic work includes a choreographic show, and its definition in the Act accommodates a dance, but it is unclear whether protection would extend to a single dance move like the ‘Milly Rock’. Australian courts have not yet had the opportunity to judicially consider any similar issues. Nevertheless, it is possible to identify a number of roadblocks which may hinder the finding of copyright infringement in favour of the Fortnite plaintiffs if their cases were litigated in our jurisdiction.

The primary issue is whether a singular dance move is sufficient to qualify as a dramatic work in its own right.

In the past, Courts have found that a dramatic work must have a minimum requirement of performance, sufficient to be predetermined as the plot or choreography between the characters/performers.¹ The subject matter must not be too uncertain or indefinite in that the ‘work’ to which copyright is claimed cannot be defined.² Thus, an argument that a fireworks display and its script amounted to a dramatic work for the purposes of the Act in Nine Network Australia Pty Ltd v Australian Broadcasting Corporation was found to be the applicant’s ‘weakest copyright case’.³ Accordingly, a dance move by itself may not be sufficiently certain or identifiable as choreography to attract copyright protection in Australia.

However, if a dance move passes this hurdle and is recognised as a dramatic work in its own right, the chances of being protected by copyright in Australia becomes higher. If the Fortnite litigation was in Australia and it was found that a dance move was eligible for protection under the Act, Ferguson, Ribeiro and Horning would only need to establish their moves are original (ie, not copied from another, arising out of their own skill and labour) and recorded in a material form (ie video recording). The latter requirement is readily satisfied in all three cases, and the originality requirement prescribed by the Act for works to be protected by copyright is a relatively low threshold which is unlikely to be problematic (except perhaps in the case of the Backpack Kid, as there is anecdotal evidence that ‘The Floss’ dance move was performed, and possibly created, at the earliest in 2011 by another individual).

If all of the above requirements are satisfied, the dance moves in question would be subject to copyright protection pursuant to the Act. This would in turn most likely mean that Epic Games would be regarded as being in breach of copyright as a ‘substantial part’ (if not all) of the work has been reproduced without the owners’ consent.

Implications

These US cases alleging copyright infringement in dance moves appear to test the borders of copyright law, and reflect the need for IP laws to catch up with, and reflect, digital advancements (and pop culture) in order to function effectively and provide robust protections to creators.

How can we assist?

Our Intellectual Property team has extensive experience advising in relation to copyright infringement and licensing of copyright. Please contact a member of our team should you require any assistance with enforcing or licensing your copyright in Australia or elsewhere.

This article was written by Luke Dale, Partner, Niomi Abeywardena, Special Counsel, and Stephanie Leong, Law Graduate.

¹ Aristocrat Leisure Industries Pty Ltd v Pacific Gaming Pty Ltd (2000) 50 IPR 29 [61]-[62].
² Tate v Thomas [1921] 1 Ch 504 [511].
³ Nine Network Australia Pty Ltd v Australian Broadcasting Corporation (1999) 48 IPR 222 [336]-[338].