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Fortnite facing legal threats over 'stolen' dances, but can you copyright choreography?

The Telegraph logo The Telegraph 22/11/2018 Tom Hoggins

Getty © Getty Getty Can you copyright a dance move? What exactly are my legal rights over my uncoordinated Saturday night fever? Do I have a case if, say, a video game creates a dance move called ‘flailing water butt’ and charges its players money to be able to use it in game?

Probably not. But more coordinated and famous dance artists just might. Earlier this week, the thorny issue of Epic Games allegedly 'stealing' dances from the real world in its phenomenally popular Fortnite Battle Royale game reared its head again.

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If you have missed the memo on Fortnite’s ‘emotes’, they are actions, flourishes and dances that your character can perform in game. They range from a round of applause to short choreographed routines. You start with just a handful to choose from, but can pay to access and unlock a much greater choice. Emotes are a common and long-running feature in online video games, but rarely have they been as prominent as in Fortnite. Or as significantly monetised.

Fortnite: Battle Royale © Getty Fortnite: Battle Royale Developer Epic are continually adding new emotes to the game with updates and new seasons. Much like buying new costumes for your characters, emotes can be seen as a status symbol in-game, as you will often need to level up enough to unlock particular options. Fortnite is a free-to-play game, but is set to generate $2bn in revenue for this year alone, largely based on in-game purchases for these cosmetic upgrades. There are Fortnite dance classes to encourage players to get active, while ‘flossing’ has been banned in some schools due to its popularity driven by the game. Epic’s ability to tap into viral culture with emotes has been a key component of the game’s extraordinary success.

This is where the apparent use of real-world artist’s dance moves becomes a contentious issue. Rapper 2 Milly is considering legal action against Epic over Fortnite’s ‘Swipe It’ emote, which appears to replicate the artist’s signature move, the ‘Milly Rock’. While 2 Milly is not necessarily a household name for his music, the Milly Rock move has become something of a viral hit.

“Everybody was just like, 'Yo, your dance is in the game,” 2 Milly told CBS. "They actually sell that particular move, it's for purchase. That's when I really was like... oh nah, this can't go on too long."

The Swipe It emote, which is currently unavailable to purchase, is just one of many Fortnite emotes apparently inspired by real-world dances. There have been emotes resembling Snoop Dogg’s ‘Drop It Like It’s Hot’, Psy’s ‘Gangnam Style’ and even the ‘Carlton dance’ from 90s sitcom Fresh Prince of Bel Air.

2 Milly isn’t the only one taking issues with Fortnite mimicking dances from popular culture without at least crediting its creators. Donald Faison, who played Dr. Chris Turk in the US medical comedy Scrubs, said of his ‘Poison’ dance from the show in a recent panel at the Vulture festival: “if you want to see it, you can play Fortnite, because they jacked that s--t.”

NEW YORK, NY - OCTOBER 03:  Donald Faison visits at Build Studio on October 3, 2018 in New York City.  (Photo by Santiago Felipe/WireImage) © Getty NEW YORK, NY - OCTOBER 03: Donald Faison visits at Build Studio on October 3, 2018 in New York City. (Photo by Santiago Felipe/WireImage) Scrubs creator Bill Lawrence did note that Epic enquired about the legality of using the dance and said “it’s fine because it’s just a character dancing.” This particular dance is one of the default options available at the start of the game, too, so Epic are not directly making money from the emote, but the issue then turns to credit and ownership. While Faison made up the Poison dance on the spot for the Scrubs show, it is now largely thought of as a ‘Fortnite dance’, with no indication in the game of where the move came from.

In July, Chance the Rapper voiced his concern that, quite aside from the money issue, that the Fortnite emotes appearing without even crediting the black creators was denying artists the chance to even be recognised for their work. “Fortnite should put the actual rap songs behind the dances that make so much money as Emotes,” said Chance in a tweet. “Black creatives created and popularized these dances but never monetized them. Imagine the money people are spending on these Emotes being shared with the artists that made them.”

Blocboy JB, whose ‘Shoot’ dance resembles the popular ‘Hype’ emote in-game shared a similar sentiment. “EveryTime Somebody Does My Dance Dey Give Credit To @FortniteGame,” he tweeted. “But Dey Ain’t Create Nothing But Da Game So Basically Dey Takin Money And Credit For My S--t Dats Crazy. Dey Love Our Culture But Hate Our Color.”

Drake performs at Sprint Center in Kansas City, Missouri on July 23, 2016. © Getty Drake performs at Sprint Center in Kansas City, Missouri on July 23, 2016. On the flip side, rapper Drake, who famously featured on a stream with professional Fortnite player Tyler ‘Ninja’ Blevins, said he wanted an emote based on his Hotline Bling dance and would feature the game in a song if it was included. Notably, that emote from the much more high profile artist is yet to appear.

However, there certainly seems to be a growing backlash against Fortnite’s apparently laissez-faire approach to including dances from popular culture and Epic, so far, has not responded to comment on the issue. But while the opprobrium seems to be rising, there is yet to be any legal action taken. 2 Milly said he is considering it.

"I don't even want to bash them for all the millions," he said. "Know what I am saying? It's not really like that. I just feel like I have to protect what's mine."

But the legal framework around dance and choreography is complex. “At a high level, yes, you can copyright choreography,” says Gregor Pryor, partner and music lawyer at international law firm Reed Smith. “Copyright protects an act of dance, in the UK it forms part of a dramatic work; a piece of dance or mime. Those dance moves can become original. There is no question in my mind that certain dance moves are original.”

Fortnite © Getty Fortnite To qualify for copyright protection, then, a dance move must be original. Which is where the burden of proof might be a challenge for the creators. It is easier to prove the longer the piece is but hip-hop artists, in particular, often distinguish themselves with signatures other than their music and lyrics. Whether Blocboy’s ‘Shoot’ dance, for instance, is unique enough to be a copyrighted work would be up for debate.

“There is a qualitative and quantitative test,” says Pryor. “Qualitatively I would argue that even though the move is quite short, it is sufficiently original and unusual to qualify as a copyright work. The second question is: is there enough of it? There isn’t a black or white, ‘yes there is an infringement claim’ answer. It would need to be tested in court.”

Significantly, any copyright ahead of would not need to be applied for as long as it has been recorded (as in a music video) and can be proved as an original work. The argument around that originality will be the sticking point for any legal action. But while there isn’t a vast body of precedent for either side to draw on, if 2 Milly can prove that the Milly Rock is an original work of his own devising, he could hold claim to its copyright.

Quite what the monetary ramifications of a successful action would be is also unclear: “it would be hard to put a price on it,” says Pryor. But the growing backlash against appropriating dances gives rise to questions about artistic ownership and showing it the respect it deserves.

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