Appeals court renews copyright battle over the Fortnite dance

Originally published at: Appeals court renews copyright battle over the Fortnite dance | Boing Boing


the expression of the dance should be copyright-able. but not the dance itself.

why do we have to go through this over-and-over?


Well, the choreography of, say, a ballet is absolutely copyrightable. Not just the expression of it. Just like a song is copyrightable, as is the specific recording of a song. That’s what has allowed Taylor Swift to regain control of her catalog by rerecording her albums that were sold by Scooter Braun. She didn’t own the copyright on the original recordings, but she did own the copyright on the songs themselves, allowing her to make new recordings.

In the case of dance, individual dance steps are not copyrightable because they’re typically not unique or original enough. But an entire ballet is copyrightable because it is unique and original enough. These Fortnite dances are in between those extremes. They consist of several dance moves put together in a recognizable dance, but they aren’t a full performance like a ballet or even, say, a three and a half minute dance choreographed by Derek Hough for Dancing With the Stars, which would almost certainly be copyrightable. Is a 10 second long dance consisting of five individual moves copyrightable? The district court here said no, as did other courts in similar cases, but now the appeals court is going to take another look at it.


I dunno, the thing about dance is it just spreads. And each little dance is individual expression. I don’t see how you can really copyright that. And when it comes to dances in media, like, yeah they didn’t INVENT the dance, but when anyone else can just boogie and do it, why can’t your avatar? I dunno… as someone with an art background you would think I’d be more sympathetic, but I just don’t think you can really copyright all art. A whole performance maybe, but individual elements?

Speaking of dance, you guys see the new (to me at least) dance, usually done to a beat sampling Crystal Waters and Kat Williams saying “a pimp named Slickback”, where they look like they are skip/gliding around. I guess when you break it down it’s like the moonwalk but while hopping. But it blew my little mind the first few times I saw it.

I feel like a grandparent on one of those commercials introducing new technology. “You say I can do this new thing? This is like magic!”

I think everyone agrees with that. I think the issue is where the line should be drawn between an individual element, and a whole performance. That line is not defined at all. And the court probably won’t define it with a bright line definition. It’s probably going to involve some kind of case-by-case analysis, which sucks because it will mean more of this getting litigated in the future.

I guess it would be cheating to ask Fortnite (under oath) exactly how they created their dance?


Um, but… cross promotion is a thing.

Cross promotion doesn’t need to be adversarial,
at all.

On the one hand, this is obviously true and maddening - on the other hand, the legal changes that would prevent them from doing that would also mean large corporations would own copyrights to bodily movements, and you’d have to pay them if you wanted to dance (or move in a dance-like manner)*.

But really it just drives home how debased our capitalist society is, driven by the idea that everything should be monetizable, because that’s the only way cultural contributions are recognized and the only way creative people could survive to actually do creative things.

*And just wait till the AI-powered automated copyright strikes for dance start showing for videos, and you can’t post videos to Youtube because some corporation is laying claim to “standing still.” (Hey, it’s no more absurd than companies successfully getting videos taken down because they claim a copyright to birdsong, or 300-year-old compositions…)


Back in the 90s I worked on a PlayStation game which involved dancing. We spent a lot of effort and money to create the signature dance moves, which were designed by a professional choreographer working with a 3D animator. They were definitely copyright.

I accept the argument that a single move isn’t copyright, any more than a couple of music notes or a short phrase of text. But then the body or work builds up to something more significant, it does become copyrightable.

Fortnite could have avoided this lawsuit by making their own original dances, but that would have cost money.


How does one “emote” a dance?




In Ballroom, there’s a whole bunch of social sequence dances over a century old, and in some cases we don’t even know who invented them. Sometimes dance teachers write a script describing one of these dances and claim copyright on the script. Some make a point of stating that they are not claiming copyright of the dance, which they believe is out of copyright; they are just claiming copyright of their written description of the dance.


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Is that related to Klaatu? Or are they a spin-off from Klaatu (who were named after Klaatu, anyway)?

(No, I did not get that reference.) :wink:

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I cannot answer that question in words, so in lieu of words:



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