Dancing the Fortnite Away

The Copyright Act provides for copyright protection in “pantomimes and choreographic works”, but they have to be fixed in tangible form. According to the Copyright Office, “choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole”, and pantomime is “the art of imitating, presenting, or acting out situations, characters, or events through the use of physical gestures and bodily movements.” However, if either is found to consist only of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements, then they will “lack a sufficient amount of authorship to qualify” for copyright protection.

So to put that in terms we all understand, if it is something you learned in gym class, it is likely not able to be registered for copyright. Unless your phy. ed. teacher was way more elegant than mine, that is.

When trying to explain what this means, the Copyright Office provides the following examples of commonplace movements or gestures that do not qualify for registration:

  • A set of movements whereby a group of people spell out letters with their arms
  • Yoga positions
  • A celebratory end zone dance move or athletic victory gesture

There goes that part of the YMCA dance. So where do a lot of those Fortnite dances belong? They certainly have originality, and most are in video. But, are they closer to an end zone dance? They seem a bit more involved than the Ickey Shuffle. So far, the Copyright Office is saying they are not eligible for copyright. Or at least the Carlton isn’t eligible. The Office found that a swing and a snap with a big smile wasn’t enough to be copyrighted. But a variant of the Floss was.

So what does that mean for Fortnite? If what they use looks to be simple movements, then they are probably OK. If it gets more complex, then they better get permission.

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