Unless you’ve been avoiding social media for years, you’re probably aware of the#Fortnite sensation that has swept the internet 🌐 and video game 🎮 worlds.
In case you’re unfamiliar, Fortnite is a battling ⚔️ game that immerses users in a hyperrealistic world in which they compete online against 100 other players.
In recent years, the game has become uber popular, almost to the point of becoming a cultural phenomenon.
One of the features that has made Fortnite so famous is the emotes that players can purchase with virtual rewards, or “V bucks”. These emotes are choreographed dance moves 🕺 that players’ avatars use to celebrate success 🙌, such as winning a battle.
These dance moves have taken over social media attorneys, but within recent years they’ve also become the subject of a famous lawsuit.
In 2018, rapper 2 Milly filed a lawsuit against Epic Games, the creator of Fortnite. The lawsuit argued that the game stole 2 Milly’s “Milly Rock” dance and used it as an emote without consulting him for licensing purposes or a partnership deal.
As a result, 2 Milly contends he’s owed profits 💰 that Fornite made from the dance.
2 Milly’s lawsuit leads us to the question at hand:
❓Can you copyright choreography?❓
The problem with Agnes de Mille
This isn’t the first time this question has been raised. In 1943, Agnes de Mille choreographed the musical Oklahoma.
As the years passed and the musical grew in popularity, it brought in over $60 million! 🤑 However, Agnes de Mille earned nothing ❌ in royalties or payment from the dance moves she created.
The Copyright Act 📜
Thankfully, in 1976, the United States established the Copyright Act, which stated that choreography could be copyrighted, so long as it was original and was fixed in a tangible means of expression.
Examples of “tangible means of expression” have been defined throughout the years, most notably in the 1986 landmark case Horgan vs. MacMillan.
This case involved the estate of the deceased George Balanchine, who choreographed the Nutcracker Suite 💃 in 1954.
When, after Balanchine’s death, MacMillan published a book featuring some of his iconic dance moves, Balanchine’s estate sued the company and won 🙌.
While this case demonstrated that you can indeed copyright choreography, there are still limitations to how far the protection 🛡️ extends.
Original and tangible means of expression
If we revisit the language ✍️ in the 1976 Copyright Act, we can dig deeper to understand exactly what constitutes “choreography” and when it’s protected.
As a reminder, the Copyright Act states that choreography can be copyrighted if:
It’s fixed in a tangible means of expression
Much like the images in MacMillan’s Nutcracker Suite book, the Fortnite emote is pretty clearly fixed in a tangible means of expression.
If we were to do a frame-by-frame comparison of the Fortnite animation and 2 Milly’s dance, we could prove this fixation and therefore satisfy the second requirement for copywriting of dance moves 🤷.
However, unlike Balanchine’s ballet choreography, it would be difficult to argue for the originality ☝️ of 2 Milly’s dance.
After consulting with Dave Klein of Dave Control, I gathered that the consensus among dance experts is that the “Milly Rock” is nothing more than a sloppy robot 🤖 dance with hip sways.
Additionally, experts are unsure whether such a short combination of movements would even constitute as “choreography”.
With this in mind, 2 Milly’s choreography in all likelihood would not 🚫 be copyrighted because it does not satisfy both requirements outlined in the Copyright Act.
What do you think of 2 Milly’s case? Would you argue for the originality of the “Milly Rock”? Leave a comment with your thoughts below.
If you’re interested in reading about the 2 Milly case or learning more about choreography copyright laws, click here to read Epic’s response to the complaint.