Fortnite and the Exploitation of Creative Capital

(this post has been updated)

Over the last several weeks, a number of creatives—including 2 Milly, Alfonso Ribeiro, and Backpack Kid—have filed lawsuits alleging misappropriation of their signature dance moves by Epic Games, the company behind the video game Fortnite. It’s worth highlighting that these lawsuits aren’t about artists going after fans incorporating these dances socially at parties or in nightclubs (which would almost certainly qualify as fair use under copyright law anyway). Instead, the complaints allege that Epic Games is profiting directly from the use and popularity of these dances by allowing players to customize their avatar and gaming experience by accessing the moves (called emotes in the game) through in-game purchases. These lawsuits have spurred a lot of discussion and debate about whether, or to what extent, the law protects dance moves like the ones at the center of these disputes.

What’s interesting about the dances involved in these cases is that they aren’t your run-of-the-mill popular dances where no one really knows how they originated or where they came from—these dances are distinct, easily recognizable, and closely associated with their creators. People associate the “Milly Rock” with 2 Milly, the “Carlton Dance” with Alfonso Ribeiro, and “The Floss” with Backpack Kid.

For many, these lawsuits revolve entirely around popular dance moves. They ask themselves “Does copyright protect dance moves like these?” and because the answer is likely no—more on that later—that’s where the analysis ends. But for many others, particularly those in the Black community, these lawsuits are about standing up to major corporations that seek to exploit the creative capital of individual artists and creators. From music, to movies, and everything in between, many of the creative industries in America have sordid histories of exploiting Black talent without fair or proper compensation. And for that reason, the importance of these discussions far eclipses any musings about the scope of copyright protection.

The term “creative capital,” as I use it, is an umbrella term that refers to people’s creative or intellectual contributions, large or small, that have at least some degree of objective value in the market place. In many cases, various forms creative capital fit squarely under one (or more) of the areas of intellectual property protection—i.e., copyright, trademark, patent law—but that isn’t always true. For example, to the extent dances are protectable, the traditional avenue for securing that protection would be through copyright. However, this protection is generally reserved for choreographed dances/routines, rather than what the U.S. Copyright Office refers to as “social dances”:

For copyright purposes, choreographic works are a subset of dance and are not synonymous with dance. The drafters of the copyright law also made clear that choreographic works do not include social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves. Social dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.

To understand why social dances, simple routines, and other similar movements are not protected by copyright, one must first understand that copyright isn’t just about the ability to monetize a work; copyright is an exclusionary right, meaning the owner has the right to choose whether to permit or prevent others from using their work, even if the user isn’t making a profit. So, for example, if copyright could be used to protect a simple two-step, in theory, an artist could prevent fans and others from including a relatively basic move in a choreographed routine (assuming it didn’t constitute fair use). It’s the same reason why a song can qualify for copyright protection, but a singular, short phrase from the lyrics would not. (Imagine a world where only one artist could write a song including the words “players gonna play”… yikes!). In this sense, copyright protection goes beyond what I believe the creators of these dances want, which is to be appropriately compensated and credited for the commercial use of their work.

This apparent gap in legal protection creates a gray area for original expression that is valuable and valued—after all, if these dances had no value to consumers, companies would have no interest in including them—but may not qualify for copyright protection. Does that mean companies can misappropriate that creative capital for profit with impunity? Thanks to these cases, which raise claims under rights of publicity, unfair competition, and trademark law, in addition to copyright, time may soon tell.

But perhaps the more important question is should companies engage in these sorts of practices, even if it is legal? In my opinion, the answer is a clear no, and it all comes down to corporate social responsibility. It is commonplace, today, to routinely read and hear about corporations exploiting artists, creators, and the general public (including their own customers), then refusing to take responsibility for those actions. This is no different. The law is often slow to catch up to social norms and expectations, and that’s where implementing best practices and voluntary measures should pick up the slack. But unfortunately, sometimes it takes the threat of being held legally accountable to “inspire” corporate entities to act responsibly.

UPDATE: Following a March 2019 Supreme Court ruling requiring that a registration application be approved or denied by the Copyright Office before a copyright owner can file an infringement suit, these lawsuits have been dismissed, as a procedural matter, while the plaintiffs await decisions from the Copyright Office. Read more about the Supreme Court’s ruling here.

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