Dance as a copyright-protected work came under the international spotlight over the last year in the USA.
Epic Games, Inc. creator of the hugely popular video game, Fortnite, has faced a slew of legal suits based on copyright infringement. In 2018, Epic Games released an update to Fortnite that allowed players to obtain new dance moves or, in gaming lingo, emotes. The avatars in the game perform a brief sequence of gestures, like fist pumps, and dance steps to, inter alia, celebrate victorious play. These victory dances, which are plainly explained as a recreation of a dance (or part thereof) popularised or inspired by celebrity persona, have become the subject of the copyright disputes.
In the interim, the persons who have inspired these dances have been quick to make application to the US Copyright Office for registration of the dances that they claim to have created and popularised. A question that is fundamental to the success of the suits against Epic Games, therefore, is whether copyright can subsist in a dance or dance moves?
The Copyright legislation in the USA does envisage copyright protection for choreographic works. Choreography is defined as the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. It is also noted that choreography consisting of ordinary motor activities, social dances, common place movements or gestures may lack sufficient authorship to qualify for protection. In a circular issued by the US Copyright Office, social dance steps and simple routines have been side-stepped and specifically excluded from the definition of choreographic works. The note states that Registrable choreographic works are intended to be performed by skilled performers before an audience. Social dances are intended to be performed by members of the public for enjoyment. It is also specifically noted that routines not performed by humans are not entitled to copyright protection as a choreographic work.
The primary issues likely to come up for determination, therefore, include whether the dances in which copyright is being claimed are entitled to protection as choreographic work or fall under the exclusion of social dances. It will likely also be questionable whether the brief sequence of dance movements or emotes by the avatars constitute copying and therefore copyright infringement. Additional issues being danced around, but which have not yet been wholly exposed, include the originality of some of the dances in which copyright is being claimed. A quickstep down memory lane in pop culture has seemingly revealed that some dances may have originally gained popularity through performances by other persons. Could it be that some of these potential copyright claimants have simply followed (in) someone else’s footsteps?
At present, some of the cases against Epic Games have been temporarily halted due to a decision earlier this year by the US Supreme Court which seems to have changed the procedure in copyright lawsuits. Previously, litigants could file for copyright infringement as soon as they had applied for registration with the Copyright Office. Now, it seems that litigants are required to wait for the Copyright Office to act on the application before taking any steps.
The US Copyright Office could dance to a distinct tune in the case of all applications, as two applications have already been refused registration by the Copyright Office. Let’s just say the applicants are being kept on their toes.
In South Africa, the issues detailed above have not come under consideration by our Courts and there are obvious differences in our legal systems, including the fact that registration is not a requirement for copyright to subsist in a work eligible for protection in South Africa. Our legislation also does not include choreographic works as a separate category of works, although dance may fall under “performance”, which is a category of copyright works. Despite these differences, the decisions in the Fortnite cases, should any proceed, could be ground-breaking and may well influence future disputes in South Africa. Indeed, our Copyright law is on the brink of major change and, while we will not dance to anyone else’s tune, it is expected that we will draw perspective from foreign jurisdictions when interpreting our new Copyright Act or dealing with innovative infringements.
Kim Rampersadh | Senior Associate