Can you sell a quotation…of dance? Another perspective on the ‘Fortnite’ lawsuits

With the fate of dance in copyright law catching interest in the press world-wide, this Kat decided to play some more with this improbable duet. Pairing two recent headlines of the IPKat (on the Fortnite litigation and Szpunar’s opinion on quotation),  she brought this question to Katfriend Charlotte Waelde (IP expert based at the Centre for Dance Research – C-DaRE): 

“Could Fortnite’s dance ‘emotes’ be considered a type of fair dealing such as ‘quotations’ of works of dance? And, what does quotation look like in dance?” Charlotte then countered with another, equally important, question: can you sell quotations of dance?

Charlotte addresses these questions in light of UK and EU law. She concludes that Fornite’s dancing avatars could be a form of ‘quotation’. However, they would still be classified as appropriation and not fair dealing, in her view. Read on for a new feline spin on the Fortnite litigation. [Readers can find out more about how the video game works and the ongoing disputes in this previous post here]

Charlotte writes:

Pr. Charlotte Waelde 
“The controversy sparked by Fortnite ‘selling’ dance moves, alleged to have been copied from pop stars including 2 Milly, Ribeiro and Horning to users of the game, raises a thicket of copyright questions, not least of which are:  does copyright subsist in the dance and, if so, who does it belong to? If copyright does subsist in the dance, has it been infringed?

For the purpose of this brief musing I am going to assume that copyright does indeed exist in the dances, and that the dance moves ‘sold’ by Fortnite to users of the game infringe that copyright. My question is as to whether what Fortnite has copied could be regarded as ‘quotation’, and, if so, whether it is possible to sell a quotation.”

The law on quotation

“CJEU case law and AG Szpunar’s opinions are starting to prove fertile ground for thinking about copyright and quotation. On the sorts of works the quotation exception applies, AG Szpunar in Pelham noted that while the quotation exception has its origin in literary works, there is nothing to indicate that it may not be applicable to other categories of works, including musical works (Pelham Case C‑476/17, para 62). AG Szpunar went further in Speigel, stating that quotation can also be relevant to other categories of works, including cinematographic works and works of fine art (Speigel Case C‑516/17, para 42).

While in Painer Case C-145/10, the CJEU spoke of the 'reproduction of extracts' of a work as coming within the scope of ‘quotation’ as per Article 5(3)(d) of Directive 2001/29 (Painer, para 135), on whether it is permissible to quote the whole of a work, AG Szpunar concluded that it should be, if the purpose for which it is quoted justifies it (Speigel, para 45).

left:Fortnite 'emote' performing "Fresh" ; Right:
Alfonso Ribeiro performing the "Carlton Dance"

 Quotation for dance?

“Quotation has not thus far been explicitly recognised as relevant for dance, or indeed for other dramatic works. There seems no reason that these works could not be brought under the umbrella of the exception in Article 5(3)(d) of Directive 2001/29.

Similarly, on the somewhat uncertain discussion to date on whether it is permissible to quote the whole of a work, or only part, the weight of opinion seems to be moving towards the view that quoting the whole is permissible so long as justified by the purpose.  For dance, and specifically the moves reproduced by Fortnite, this could be a relevant consideration as it seems that the original works of dance are short, or limited to few moves, which are then repeated.  The quotes by Fortnite would seem, at least in some cases, to be the whole of the dance.”

Fornite’s dance emotes… criticism, review, or tribute?

“In Pelham, AG Szpunar laid out three conditions for the application of the quotation exception.  The first is that the quotation must be ‘for purposes such as criticism or review’ (Pelham, para 64). The AG considered that the use of the words, ‘such as’ showed that the list, was merely illustrative.  The quotation must nonetheless ‘enter into some kind of dialogue with the work quoted’, ‘[w]hether in confrontation, as a tribute to or in any other way, interaction between the quoting work and the work quoted is necessary’ (Pelham, para 64).

What about the dance moves used by Fortnite?  It is difficult to see confrontation between Fortnite’s quotations from the dances and the dance works from which they are taken. It would seem possible to consider the quoted dance moves as Fortnite’s way of paying tribute to the original dances, highlighting Fortnite’s view of their importance to a generation of gamers. 

The second condition for the lawfulness of a quotation is that the quotation must be unaltered, meaning it must be incorporated into the quoting work without modification, and relatedly, it must be ‘easily distinguished as a foreign element’ (Pelham, para 65).  AG Szpunar noted that this second point flows from the first, in that it would not be possible for a quoting work to enter into dialogue or be compared to the work quoted if the two were indissociable.

same move, different bodies?
At first sight this requirement might seem somewhat problematic for quotation in dance.  If what is being quoted is (part of) a recorded dance, then the dance will be both unaltered and easily distinguishable from the quoted work.  But, as with Fortnite, that will often not be the case.  What may be quoted is (part of) the dance (in which copyright subsists because it has been recorded), but not a recording of the dance. The dance might be quoted by the original dancer, or by a different dancer.  Whichever way, a dance can never be exactly the same when performed by the same dancer and certainly not the same when performed by two different dancers, no matter how tightly it is choreographed.  All (dancing) bodies are, after all, different. 

While AG Spunzar noted that there were exceptions to the ‘unaltered’ requirement, particularly for translation, dance has yet to be mentioned.  That said, the requirement that the dance is easily distinguished ‘as a foreign element’ seems to be beyond doubt in the case of Fortnite.  By all accounts once the moves appeared on Fortnite, users recognised them and informed the ‘creators’ accordingly. This is unlike music sampling, which AG Szpunar noted, consists of “taking extracts from other phonograms, which are used as raw materials, to be included in new works to form integral and unrecognisable parts” and which are “often modified and mixed such that original integrity is lost”(Pehlam, para 67).  This is not interaction, but a form of appropriation.  It is quite different for the use of the dance by Fortnite, in that the dances remain purposefully recognisable and with their own integrity.”

Requirement of attribution

“The third formal requirement for quotation is that the source, including the author’s name is indicated, unless it is not possible (Pelham, para 68).  While attribution should be possible on Fortnite, and indeed seems to have been the case for the Carlton Move, it seems that other dance quotes have not been attributed. That said, there are other times where attribution in dance will be far from straightforward. AG Szpunar has noted that citing literary works generally involves ‘quotes, italics, fonts other than the main text, footnotes, etc.’ (Speigel, para 41). While dance was not mentioned, and while in some instances attribution may be straightforward, there are other times, such as where a live dance quotes from an existing dance, adaptation will be required. 

 Leaving aside for a moment Fortnite’s failure to attribute copyright authors and sources, and making several assumptions about copyright in the dance, including existence, authorship and ownership, it would seem arguable that the use by Fortnite of (parts of) the dances could amount to quotation.

 This takes us to the second question outlined above and the title of this blog piece: can you sell a quotation?”

Is selling a quotation…fair dealing?

“CDPA s 30(1ZA)(b) requires that the use of the quotation is fair dealing with the work. The focus is on the original dance, with the question for Fortnite being whether the use of the quotation is fair dealing with regard to the dance work.  Readers of this blog will be familiar with the factors that the courts have considered relevant, including whether using the quotation affects the market for the original work, and whether the amount taken is reasonable.  Although these criteria have been expertly critiqued by Bently and Aplin (here), they are factors that courts in the UK would take into account. 
So would selling a quotation be fair dealing? If one thinks about whether ‘a fair minded and honest person would have dealt with the copyright work in the manner’ that Fortnite did, the answer is likely to be ‘no’ – is it really honest to take a dance work, extract a quotation and then sell that quotation? It feels more like appropriation than fair dealing. Are the parties competitors, and would the use of the quotation act as an alternative to purchasing the original?  The notion of the parties being competitors is an interesting one, but given that Fortnite has created a new market for the quotations in its game, it is nonetheless difficult to accept that creating a new market in selling quotations would count as fair dealing with the original work.

In answer to the question, “can you sell a quotation?” the discussion suggests that such a ‘sale’ would not be fair dealing with the original work. Quotation is as relevant and applicable to dance as it is to other copyright works, but selling quotations, at least in the context in which Fortnite sells quotations, is not fair and would be an infringement of copyright.”

Quote and sell…but pay for it first

“Such a conclusion would sit well with the dance community.  The ‘free’ circulation of dance is central to creation and important to many in the community, quotation is one way in which creation and circulation can be facilitated. Increasingly, the importance of attribution is recognised whatever form it takes, and is as important to dancers as to other creatives.  Like most creatives, while many actively encourage circulation, dancers do not want others to profit financially from their works.  Such a conclusion would also enable dancers to share in, and profit from, new markets as they emerge both in the analogue and digital spheres.”  

This Kat’s intellectual curiosity for quotation in dance is now replete, and she shall keep a keen eye on the development of the dispute in the US.

Can you sell a quotation…of dance? Another perspective on the ‘Fortnite’ lawsuits Can you sell a quotation…of dance? Another perspective on the ‘Fortnite’ lawsuits Reviewed by Mathilde Pavis on Wednesday, January 23, 2019 Rating: 5

1 comment:

Andy said...

Thank you Charlotte for a thought-provoking and incisive examination of the issues. I agree with your analysis, although I do wonder how a court within the EU would deal with the matter of selling an otherwise legal use of quotation. Let's face it, most examples of quotation which are litigated will have come to the attention of a claimant because the work containing the quotation is available to the public (or at least a public). Very often this will have been through some commercial exploitation, such a book, magazine article, TV programme or film. In all of those contexts, the quotation can be said to have been sold, albeit as part of another work. The difference in the case of Fortnite is that the other work (the emote) is thin and arguably may not contain sufficient justification (critciism, review, tribute etc) to invoke the quotation exception, not to mention the absence of any attribution.

If you are right about the selling aspect, this calls into question many other, equally less-justifiable uses of quotation, such as aspirational slogans on social media or printed on tee shirts. Clearly the former involves no selling, but in the latter case the quotation will form a large part of, if not the sole, 'value' of the tee shirt to a potential customer. It is the quotation which is the commodity for sale and the tee shirt is relegated to being the medium on which the quotation is carried.

Sadly the emote issue is unlikely to be decided within the EU, and given the much more flexible application of the fair use factors by the US District Courts, we may get a very different answer, assuming the various case don't settle first.

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