Posted by Post Authored By: Natalie Elizaroff
Dance is a form of art characterized in part by performance and in part by participation. It can be considered as an original expression of choreography, an embodiment of history, or a rhythmic collection of movements representative of a people or culture. [1] Accordingly, many would argue that dance, like other art forms, can be copyrighted as copyrights are granted for “original works of authorship” that are fixed in a tangible medium. [2] Although technically correct, the legal hurdles required for dance copyrights tend to outweigh the incentives.
Dance lawsuits have hit the news again, this time concerning the “Soul Jah Boi” dance in NBA 2K19. Take-Two Interactive Software, Inc. is seeking a declaratory judgment of non-infringement against Atlanta rapper Brandon Sims. [3] The company argues that the dance steps are not copyrightable based on current law which holds, “movements or dance steps by themselves are not copyrightable.” [4] This suit arises two years after Fortnite, Epic’s most profitable and popular video game, got slammed with seven separate lawsuits claiming that Epic broke copyright law by using unique dance moves as Fortnite emotes. [4] Most of those suits were dismissed given the Supreme Court’s decision in Fourth Estate Public Benefit Corp v. Wall-Street.com, which held plaintiffs must wait for the Copyright Office to act on a copyright application before filing suit for infringement. [5] Despite the temporary dismissal, the tide for artists is unlikely to change in view of the U.S. Copyright Office’s denial of Alfonso Ribeiro’s request for copyright on the Carlton dance. The office stated that a mere combination of three dance steps is incapable of registration. [6] Accordingly, Take-Two will likely take home another victory when it comes to the declaratory judgment suit against Sims regarding the copyrightability of dance moves.
How can dance be protected?
Copyright protection for a dance begins as soon as the dance is created and fixed in a tangible object. The U.S. Copyright Act of 1976 stipulates that, while you can copyright a dance, it must meet certain criteria:
- The dance must be your original work: it must originate with you and show some minimal level of creativity.
- The dance must be fixed in a tangible object. This might include a film or video recording of the dance, or a precise written description in text or in a dance notation system. An idea for a dance is not entitled to copyright protection, nor is a dance that has been performed but not notated or recorded.
- A dance does not have to tell a story or be presented before an audience to receive copyright protection. [7]
Some common elements in choreography and pantomime include:
- Rhythmic movements in a defined sequence and a defined spatial environment, such as a stage
- A series of dance movements or patterns organized 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
- Musical or textual accompaniment [8]
Although no single factor or exclusion thereof is determinative, it must be fixed in a tangible medium such that it can be recreated or performed consistently and uniformly. Video recording, textual descriptions, photographs, and drawings are all ways to fixate the works.
What are the consequences of the legal protection that artists seek?
Dance lawsuits centered around single-step movements or short sequences are dangerous to copyright law. Inventing a new dance step is relatively easy and if copyright protection extends to cover such simple moves the United States Copyright Office will find itself inundated with a wide array of dance move applications. In the age of internet trolls, memes, and online challenges, this is a can of worms not worth opening. This comes especially due to existing copyright protections that can be easily abused. The copyrighting of dance moves and sequences are ultimately not likely to protect the ‘little guys’ so much as they would help large companies turn cultural experiences into private commodities.
There is a fine line between abuse of copyright and actual protection. Although artists like 2 Milly, Alfonso Ribeiro, and Brandon Sims have had limited success with their copyright claims, their creative expressions still deserve recognition and appropriate credit that the legal system fails to provide.
[1] Aili Bresnahan, The Philosophy of Dance, Stanford Encyclopedia of Philosophy (Nov. 19, 2019), https://plato.stanford.edu/entries/dance/.
[2] Copyright in General, United States Copyright Office, www.copyright.gov/help/faq/faq-general.html (last visited Sept. 23, 2020).
[3] Riley MacDonald, Atlanta Rapper Claims “Soul Jah Boi” Dance in NBA 2K19 Infringes His Copyright, Patent Arcade (Aug. 27, 2020), http://patentarcade.com/2020/08/atlanta-rapper-claims-soul-jah-boi-dance-in-nba-2k19-infringes-his-copyright.html.
[4] 17 U.S. Code § 102 (2018).
[5] Austen Goslin, Fortnite dance lawsuits dismissed after new Supreme Court ruling, Polygon (Mar. 11, 2019), https://www.polygon.com/fortnite/2019/3/11/18260142/fortnite-dance-lawsuits-dismissed.
[6] Owen S. Good, Dance can’t be copyrighted, government tells Carlton, Polygon (Feb. 16, 2019), https://www.polygon.com/2019/2/16/18227557/the-carlton-fortnite-dance-copyright-lawsuit-rejected
[7] Copyright Registration of Choreography and Pantomime (Circular 52), United States Copyright Office(Sept. 2017), https://www.copyright.gov/circs/circ52.pdf.
[8] Id.
About the author:
Natalie Elizaroff is a 2L at UIC John Marshall Law School. She is the President of the Video Game Law Society and Secretary of the Intellectual Property Law Society. Prior to law school, Natalie graduated with a B.S. in Molecular Biology from Loyola University Chicago. Natalie plans to take courses in U.S. Trademark Law and U.S. Patent Law and hopes to work in the Patent Clinic in the upcoming year.