About the authors:
Sauhard Alung and Anurupa Mukherjee, are students of Hidayatullah National Law University, Raipur.
The last year witnessed a major shift in the gaming industry with the emergence and instant mainstream success of Battle Royale games such as Bluehole’s Player Unkown’s Battlegrounds and Epic Games’ Fortnite. In 2018, Fortnite earned 2.4 billion USD in revenue, which is the maximum annual revenue of any game in history, making it the biggest online game in the world. Much of this revenue comes from character skins, and especially emotes, which are short avatar animations, that the players can buy to customise their in-game avatars.
Epic Games finds itself embroiled in a legal tussle around emotes. A significant portion of the 2.4 billion USD revenue is sourced from selling these emotes to the players. Trouble lies in the fact that the emotes replicate signature dance movements created by pop culture icons such as 2 Milly’s “Milly Rock”, Alfonso Ribeiro’s “Carlton Dance”, and the Backpack Kid’s “Floss” dance. While emotes do not form an integral part of the online game, if purchased, the player’s avatar can perform these dances during Fortnite’s gameplay, thereby generating revenue.
Epic Games has neither taken any prior permission from nor paid any royalty to these artists for using the emotes which has consequently led to claims of copyright infringement against them. Thus it presently poses a fascinating jurisprudential conundrum surrounding the .
Sue you, think you can steal my dance?
Several lawsuits have been filed against Epic Games regarding the improper use of dance moves as emotes.
The first of these lawsuits was filed by Terrence Ferguson, aka 2 Milly, claiming that Fortnite has unfairly profited through its misappropriation of Ferguson’s highly popular signature dance “Milly Rock”. Ferguson claims to have created the “Milly Rock” dance in 2011, which was popularized by Ferguson’s 2014 song of the same title. In July 2018 Fortnite released its Season 5 Battle Pass which the players could purchase whereby they could complete certain missions to earn emotes and other customizations for their avatars. This included a new emote, identical to Ferguson’s “Milly Rock”, titled “Swipe It”. Not only was the emote misleadingly labelled, but was also without Ferguson’s consent to use, display, reproduce, sell or create a derivative work based upon Ferguson’s dance.
On similar grounds, further lawsuits were filed against Epic by Russell Horning, aka the Backpack Kid, and Alfonso Ribeiro. Russell Horning claims to have created the “Floss” dance, which went viral on social media after a video of him performing the dance was posted by Rihanna on Instagram in 2016 and then performed by Katy Perry on Saturday Night Live in 2017. In December 2017 Fortnite made available for purchase, in a similar manner as “Swipe It”, a new emote titled “Floss” which is identical to the Backpack Kid’s dance. Alfonso Riberio, known for his role as Carlton Banks in the television series The Fresh Prince of Bel-Air, created a distinguishable dance on the show, commonly called “the Carlton Dance”, which is immensely popular and recognized as his signature dance move. In 2018, Fortnite released the “Fresh” emote in its Item Shop, available for purchase to its players. Moreover, the naming of the emotes as such, indicates that Fortnite wishes to create a connection in the minds of the players between the in-game purchase and popular dance moves.
The lawsuits currently stand withdrawn in the aftermath of a Supreme Court ruling requiring the plaintiffs suing for copyright infringement to have their works registered with the Copyright Office first.
The American Law
The U.S. Copyright Office does not recognise short dance routines, comprising of a few movements or steps with minor linear or spatial variations, as a choreographic work even if the routine in question is novel or distinctive.[1]
The judiciary has only opined sparsely on the issue and as a result thereof no definitive case law exists. In Fuller v Bemis[2], considered for long to be the most specific jurisprudence in the subject, the Court said that mere compilation of ‘a series of graceful movements, combined with an arrangement of drapery, lights and shadows, telling no story, portraying no character, depicting no emotion’ would not qualify for copyright protection. Goldstein deduces that ‘if the work had depicted an emotion it would, arguably, have been protectable’.[3] The precedent thus set remained in place in the U.S. until the 1976 Federal Copyright Law explicitly extended protection to choreographic works. However, in Horgan v Macmillan[4], the United States Court of Appeal, Second Circuit, interpreted “choreography” to be the composition and arrangement of dance movements and patterns which is usually intended to be accompanied by music and “dance” to be static and kinetic successions of bodily movement in certain rhythmic and spatial relationships. It was held that, in order to be granted protection under copyright, choreographic works need not tell a story. Further, it was provided that, apart from movements even physical attitudes, conformation of the dancers’ bodies, or the placement of dancers on the stage could constitute protectable subject matter.
This is primarily because the dance moves in question do not constitute a choreographic work eligible for copyright protection. Further, some of the dance moves for which copyright is claimed are specifically excluded from being choreographic works under the U.S. Copyright Act. for other art pieces and granting such protection would put the free expression of others at risk. Thus, just like individual words or musical notes are not eligible for copyright protection, individual dance steps cannot be granted protection under the current legal scenario in the US.
The WIPO Recourse
Whereas the US legal system has little solace to offer to aggrieved artists, a close inspection of the WIPO regime lends a glimmer of hope. While the Berne Convention in 1886 included choreography under the umbrella of literary and artistic works, it was the Rome Convention of 1961 that not only discussed performer’s rights for the first time but also included dancers in the definition of performers. The Beijing Treaty of 2012 truly enunciated what Rome had conceived and granted economic rights such as the right of reproduction, distribution, rental, and making available to the public, and moral rights, i.e., the right to claim to be identified as the performer and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation, taking into account the nature of the audio-visual fixations.
If these WIPO provisions were to be applied in answering the present question, the artists would likely not get any relief under the Berne Convention since individual dance movements are only parts of a choreography, whereas what is protectable therein is the whole choreography rather than the parts thereof. However, under the Beijing Treaty, unlike Berne, the focus seems to be more on the performer than the performance. Thus, when a dancer is taken to be within the bracket of performer, their performance is protected at least by their moral rights.
The Complainants based their argument of misappropriation of identity on the former moral right while invoking violation of right to publicity (under Section 3344 of California Civil Code). Additionally, coding the artist’s dance movements could potentially constitute modifications prejudicial to his reputation especially if the dance moves have been coded from the artist’s videos. The prejudice caused would be a result of the viewer incorrectly linking the artist to the game.
Therefore, in the countries that are parties to the Beijing Treaty, there exists a reasonable possibility of the aggrieved artists getting some relief through the window of moral rights. Unfortunately the Treaty is not yet in force.
What if dance moves cannot be granted copyright?
When relief may not be had through copyright, one is likely to find themselves before Right of Publicity at the intersection of Intellectual Property Law and Entertainment Law.
Right of publicity, in general, protects a person’s name, voice, signature, photograph and likeness. However, of all the constituents, it is ‘likeness’ on which courts continue to differ the most.
‘Likeness’ refers to a visual image of the plaintiff, whether in a photograph, drawing, caricature, or other visual presentation. The visual image need not precisely reproduce the plaintiff’s appearance, or even show his or her face, so long as it is enough to evoke the plaintiff’s identity in the eyes of the public.
Courts have held defendants liable for using a photograph of the plaintiff’s race car in a television commercial, (see Motschenbacher v. R.J. Reynolds Tobacco Co.[5], and creating a commercial featuring a robot decked out to resemble Vanna White and posing next to a Wheel of Fortune game board, (see White v. Samsung Elec. Am., Inc.[6]). In all of these cases, the common rationale was that the attribute in question was sufficient to identify the plaintiff and evoke their identity for the public.
Keeping the law and its aforementioned interpretations in perspective, an emote could easily fit into the definition of likeness and an illegitimate transgression of such likeness could invite a suit under right of publicity.
What if these suits were instituted in Indian Courts?
India, too, much like the Beijing Treaty, includes dancer in the definition of ‘performer’ in Section 2(1)(qq) of the Copyright Act, 1957 thereby securing rights of the performer rather than the performance. Chapter VIII of the Act fleshes out the skeletal provisions laid out in the Beijing Treaty in terms of moral rights, broadcast reproduction rights and exclusive economic rights of the performer.
However, in Institute of Inner Studies & Ors v Charlotte Anderson & Ors [7],while discussing the copyrightability of yoga asanas, the Delhi High Court, inter alia, followed the US District Court position in the case of Bikram’s Yoga and summarized the current status of the law as follows:
“Congress has stated that the subject matter of choreography does not include “social dance steps and simple routines.”(House Report, 1976) A compilation of simple routines, social dances, or even exercises would not be registrable unless it results in a category of copyrightable authorship. A mere compilation of physical movements does not rise to the level of choreographic authorship unless it contains sufficient attributes of a work of choreography. And although a choreographic work, such as a ballet or abstract modern dance, may incorporate simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship. And as explicitly explained by the Copyright Office, compilations of exercises–specifically yoga exercises–are not copyrightable (Circular 52)”
India has not seen too many cases regarding the copyrightability of dance movements or its likes. While the statutory provisions might allow for some stretch of imagination through the window of performer’s rights, the present status of law seems to be in complete agreement with the position held in US.
Thus, it may be safe to say that should cases of similar factual fabric come before the Indian courts, the law remaining unchanged, the scale would tilt heavily against copyrightability. In light of the current international position on the point of law it would be unlikely for Courts to grant copyright protection to dance movements as it is rare if not unprecedented for judgments to be pronounced relying merely on the possibility of a certain interpretation of the statute.
Conclusion
The present position of law in the matter, while not definite, certainly disadvantages the artists and poses the classic jurisprudential law-ethics dichotomy. It goes without saying that even in the absence of the protection accorded by law such parasitic actions violate the code of ethics deeply engrained in a civil society and compromises the objectives of justice, good conscience, and equity.
The trajectory from Fuller v Bemis[8] to the emote suits against Epic Games appear to have been threaded by an undercurrent of racism. In Fuller v Bemis, Ms. Fuller, a white American, sought protection for the Serpentine Dance – a South Asian dance, while in the present suits Epic Games allegedly misappropriated the dance movements of particularly African-American talent as Terrence Ferguson specifically alleges in his complaint. While it could be coincidental, the prevalence of a tendency towards cultural misappropriation might not be a preposterous proposition.
Tangential observations aside, the core question of law in this regard is answered against the copyrightability of dance movements. Examination of available legal recourse and a consequent logical deduction leads one away from the path of Copyright towards that of Right of Publicity.
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[1] Copyright Registration of Choreography and Pantomime, Circular 52, Copyright Law of the United States.
[2] 50 F. 926,929 (C.C.S.D.N.Y. 1892).
[3] Paul Goldstein, Goldstein on Copyright Vol. 1, 2:113 (2005).
[4] 789 F.2d 157,163,229 U.S.P.Q. 684 (2d Cir. 1986).
[5] 498 F.2d 821 (9th Cir. 1974).
[6] 917 F.2d 1395 (9th Cir. 1992).
[7] 2014 SCC OnLine Del 136.
[8] Supra, note 2.