Last year’s video game market was dominated by Epic Games’s battle-royale sensation, Fortnite.  The game combines elements of building defensive fortifications with third-person shooter elements to create an environment where players basically compete in a cartoonish free-for-all that ends with only one player declared to have achieved “Victory Royale.” However, the game’s dance moves have brought up the question of copyright infringement.

Fortnite Breaks Ground in Copyright Litigation with Dance Moves

While Fortnite has achieved considerable success and broken many video game records, it also has broken new ground in intellectual property litigation, specifically in copyright litigation.  While Fortnite is a free-to-play game, it does offer a number of “premium” options for which players can pay real money.  Among some of these premium or cosmetic options is the ability to buy specific dances for the player’s character or avatar. When choosing which dances to incorporate into Fortnite, Epic Games decided to include dances that would appeal to the player base, and as such, programmed in dances that were taken from mainstream, popular culture.

Because these dances, however, have come to be largely associated with the specific characters or celebrities that perform them, Epic Games has found itself in the middle of a flurry of new litigation.  While the choreography and public performance of dances have long been recognizable as copyrightable, whether the dances depicted in Fortnite are subject to copyright is hotly contested by both sides.

Fortnite Defends Dance Moves as Repetitive Animations

Among its many defenses includes an interesting stance that the video game characters are only performing repetitive animations of the “dance moves,” which may be considered part of a process instead of an actual performance.  As such, then for litigation’s sake, the main issue becomes when does a “move” become a dance, and if it is not a dance, can a party still sue simply because that “move” has become associated enough with a particular celebrity or performer?

At least three lawsuits have already been filed against Epic Games over the issue. While the jury is still out on the verdict, experts do agree that, overall, the plaintiffs in the suits must, at the very least, prove that the dance moves they are suing over can be deemed original enough to deserve copyright protection on its own merits. Otherwise, if the dances can be proven to be unoriginal because it takes too much influence or direction from an earlier dance, the dance or move may not deserve protection and will instead be simply considered a derivative work.

Copyright Litigation Plaintiffs Must Prove Dance Moves Are Expressive Works

Experts also point out that the plaintiffs will have to overcome the argument that the moves are not part of a greater “whole” (i.e., dance) and as such, can be considered a singular expressive work on its own.  More specifically, because the Copyright Act specifically deems procedures, processes, systems, and methods, etc., as not subject to copyright protection, the plaintiffs in these cases will have to prove that their dances or moves are purely expressive works as opposed to being part of a great work, process or procedure.

While programmers have long incorporated such fan service and “Easter eggs” into video games as both homages to the performers and as rewards for fans, it is likely that the combination of the blockbuster success of Fortnite, coupled with the high-profile use of the dances in the game, combined to create the high-profile backlash and copyright litigation that exists today.

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