Epic Games Dances Into Players’ Wallets
The hit game of 2018 (released by Epic Games in 2017) Fortnite is getting multiple lawsuits from different performers regarding the use of dance moves available for use within the game. The game allows players to command their avatars to dance, and players may select from a range of available “dance emote” options – available for individual purchase by players (generating over billion dollars for Epic). The plaintiffs allege that some of these options are depictions of the dance moves of celebrities and entertainers.
This case hits most of the usual notes of hard cases in intellectual property: where is the line between homage and plagiarism? How much use of a thing violates fair use? What can be protected by intellectual property law? This case is also an example of how easy it is to think incorrectly about an issue in intellectual property. If we focus too much on understanding why Epic might use the dances of famous people, we can fool ourselves into thinking this is a trademark case. When we approach this case by first assessing what subject matter is at issue, we recognize this as a copyright case. The fact that a dance can be understood, culturally, as a kind of signature is what can lead us into an incorrect analysis of this case as one of trademark and not copyright.
It Might Be Your Signature Move, But You Don’t Sign Checks With It And You Don’t Get a Trademark Registration For It
Movements or motions can act as a kind of signature for people—especially those in the public view who want to be remembered. Carol Burnett ended her show with a tug on her ear. Johnny Carson imitated a golf swing after delivering punch lines in his nightly monologue—Conan O’Brien made a joke of trying to incorporate overly elaborate “signature gestures” into his show during his debut monologue. YouTube performer PewDiePie has made a point to regularly associate himself with a “BroFist” gesture. Politicians often have an associated hand gesture—like Bill Clinton’s half-fist-with-thumb-on-top. A person’s idiosyncrasies make it easy to identify, imitate, and remember them—and imitating a celebrity’s signature movement can invoke an audience’s positive attitudes towards that celebrity. Invoking the goodwill associated with a person for the benefit of someone else sounds strikingly similar to a case of trademark infringement.
So, can dance moves be protected by trademark? If we think of dance as a signature, then it sounds like a kind of source indicator– people associate the dance with an entertainer. But it’s not really used to indicate the origin of a good or service: NBC doesn’t use Turk’s dance to inform viewers that they’re watching the show Scrubs. And this is why the trademark analysis is the wrong way to think about this case: although the reasoning in the infringement looks like the reasoning involved in trademark infringement (to take advantage of the fame of a celebrity), the subject matter (a dance) is not normally in the domain of trademark law.
It might not be impossible to get a trademark registration for a dance, but it would be difficult. Maybe a dance submitted to the trademark office as part of widely-run marketing campaign could meet a trademark standard. Or a product or service is actually provided with – or because of—the dance might qualify for a trademark registration. I’m not sure if either would earn a trademark registration (it would depend lots of other facts in the trademark application), but it would take a very high level of creativity and ingenuity to secure a trademark registration for a dance.
So It’s a Copyright Question?
When we start with the question of subject matter (and not by wondering why someone might copy a dance), we recognize that a question about the depiction of a dance is most likely a question under copyright law. Copyright law recognizes dance as a medium of artistic expression. It makes sense that, if plays and scripts can be protected by copyright, (and copyright protects musical compositions and performances), then copyright can protect the work of dancers and choreographers in ballets, musicals, etc.
Copyright attorney Shanti Sadtler Conway explained, “The U.S. Copyright Office views individual steps the same way it would individual colors or words.” This is interesting for a few reasons, one of which is that colors and words are better defined and understood than the concept of “an individual dance step.” In this case, there are certainly at least several “steps” depicted in each of Fortnite’s dance emotes- the dances appear to last at least 10 seconds. Is that a paragraph’s worth of content, when converted from choreography to prose? A paragraph can be enough to be punishable infringement.
The Seminal Question of the Internet: “Is it FAIR USE?”
The two misconceptions I see most often about fair use are 1) “it’s fair use if I don’t make money off it,” and 2) “it’s fair use if I only use a little bit.” Those two things are often among the things that a judge might consider when evaluating whether a use is protected under 17 USC 107, but using even a small percentage of a work might still infringe a copyright. So, Epic might try to claim fair use, but I’m skeptical about how the court might receive that argument. It might work, but a for-profit, non-transformative, non-parody use of a work does not point to fair use – and, indeed, it likely concedes the point that Epic used someone else’s work.
Is This Appropriation of Personal Likeness?
It’s worth reflecting on how easy it was to think of this case as a trademark issue. The reason the case looked like a trademark question was that the alleged infringement appears linked to the fame and celebrity of certain individuals. There is another area of law that can address this kind of claim: right of publicity. These state laws touch on ideas in both copyright and trademark law, and apply them specifically to the depiction or representation of a person.
In 1988, Ginger Rogers lost her case against a filmmaker who made a movie referencing her in the title (though the film was not about her, some general elements evoked her career as the Hollywood dance partner of Fred Astaire). She brought claims under trademark law as well as claims regarding her right of publicity. Sadly for her, the court held that “minimally relevant use of a celebrity’s name in the title of an artistic work” was not a violation of Rogers’ rights. Although it wasn’t a Supreme Court decision, the case became the landmark for the use of celebrity references in artistic works that are not about that celebrity. (Maybe this loss is why Rogers did not even bother suing Madonna for the mention of Ginger Rogers’ name in the 1990 song “Vogue.”)
Legal questions of the use of personal likeness in video games are getting more attention in recent years, especially for athletes in sports games. (This, in turn, has caused questions of the copyrights of the tattoos of those athletes.) It’s not clear whether a depiction of a dance associated with a performer infringes a right of publicity. If the court can accept the legal concept of a “signature dance move”, then the claim seems to meet the test given in the Rogers case. It would be very interesting to see if this litigation expands the claims that can be brought under right of publicity laws.
Conclusion: Trademark, Copyright, and Right of Publicity Have Similarities, but They’re Still Legally Distinct
Thinking about the use of someone else’s fame makes it easy to think of a trademark issue, but in this case, a fundamental analysis precludes trademark and points to copyright. However, remembering the role of fame leads to thinking about possible claims under right of publicity laws. In legal analysis, it’s important to address the most fundamental questions before speculating on motive or intent.
Trademark law has a lot of purposes and roles. One function of trademark law is to protect the goodwill, fame, and celebrity that a person or company worked to build up, and prevent other people from taking advantage of that work without permission. However, not every case of using someone else’s fame is a trademark case.
Can dance moves be protected by patent? This is a non-starter. 35 USC 101 outlines eligibility for patentable subject matter as “new and useful process, machine, manufacture, or composition of matter.” Obviously, choreography isn’t considered an invention or discovery that fits those categories. Debates about patentability are fierce and complicated, especially as humanity explores new territory in medicine and computer science. I wonder whether dance will be considered for patent when it is programmed into a hologram’s performance (the choreography itself will likely be exempt from any patent) or when it is created by an AI system that is patented (I think this will be a more complex argument over whether this is a process for creating choreography).