Dance dance dance: another episode in the Fortnite saga

The Fortnite litigation disputing copyright ownership in dance moves reproduced in video games are back on the news. Kat friend John William Shaw (Stone King LLP) ponders over the potential outcome of one of the cases if it were heard in the UK. John writes:

The US Copyright Office is reported in the NY Times (here) to have stated that the “Carlton dance” as popularised by the actor Alfonso Ribeiro, could not be copyrighted on the basis that it was “too simple”. Ribeiro was attempting to gain copyright in the dance move in parallel with the ongoing litigation against Epic Games.

Readers will be well aware of the legal proceedings and the various issues covered in previous posts (here and here). This Kat thought that the recent news would be a purrfect opportunity to moonwalk readers through how the situation may have differed for Ribeiro if the “Carlton dance” had been subject to UK copyright.

Brief background

Fortnite emote to the left; Ribeiro performing on
Dancing with the Starts on the right

The facts have been well rehearsed. Alfonso Ribeiro, who played Carlton Banks in the Fresh Prince of Bel-Air, performed the dance to the Tom Jones song “It’s Not Unusual” during an episode of the show. Ribeiro has since performed the dance at various events, including during season 19 of "Dancing with the Stars", which he won. The dance move is alleged to have been replicated in the videogame Fortnite as an “emote”.

Intellectual property in dance

In England and Wales, original dramatic works are not defined in Section 1 of the Copyright, Designs & Patents Act 1988, except that they include “a work of dance or mime”. The key question for a court to consider is whether the combination of movement in question is sufficient to qualify as a “work of dance”. The US Copyright Office appears to have decided that the work is too simple to be classified in this way.

There is very little case law on dance copyright in England, but one case that involved dance and considered the definition of dramatic work (although in the context of a film) was Norowzian v Arks Ltd (No.2). The case involved the Guinness advertisement called “Anticipation”, which featured a solo man performing (what counsel described as rather a quirky) dance while he waited for his pint of Guinness to settle. The action was brought by Mr Norowzian on the basis that the film infringed on his own film “Joy”, which featured an individual dancing and contained similar editing techniques.

In his decision, Nourse L.J. provided a useful clarification regarding what he considered would constitute a dramatic work, stating that “a dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience”.  Interestingly, he did not go into detail about the required duration or complexity of such action in order for it to qualify.

The US Copyright Office stated that the dance was “too simple”. In England, by contrast, there does not appear to be a "complexity" test. Rather the focus is on the originality of the work, which may prevent numerous dance moves from being protected by copyright.

This means that the question for the court would be whether the move, as with any work, was sufficiently original. The traditional test for originality is that there has been sufficient skill, labour and judgement, which is actually quite a low bar. In Infopaq, the CJEU set out that the European structure for copyright protection, relying  on whether the work is original in the sense that it was its author’s own intellectual creation. The “Carlton dance” is likely to be considered the product of skill, labour and judgement given the timing and sequence involved and, if this is the case, copyright would subsist. But this raises another question – whose skill, labour and judgement?

Authorship

One key aspect of the “Carlton dance” is that it was performed as part of a character performance.  As the IPKat previously noted, had a choreographer directed Ribeiro on how to perform the dance, then the issue of ownership of copyright would not be clear cut.

There are two reported UK cases on dance copyright [Holland v Vivian Van Damm Productions Ltd [1936] MCC 69 and Massine v De Basil (1938) [1936-45] MCC 233].  Both have shown that, where there is no scope to make creative choices during the performance of another’s work, the moves of the dancer would not result in copyright. Instead, performers’ rights are the correct mechanism to protect the relevant interest (see Let’s dance! – but who owns it?, Charlotte Waelde, Sarah Whatley and Mathilde Pavis, E.I.P.R 2014, 36(4), 217-228). The determinative question would then become whose idea it was for the character to do the version on the “Carlton dance” that we saw on screen.

Fixation

Dancing with Cats, by
Burton Silver and Heather Busch

Fortunately for Ribeiro, an important aspect of protecting the copyright in dance is fixation in a tangible medium of expression.  Although there is no international framework on the requirement of fixation, in English law the work has to be fixed in some material form, such as a film.  As a result, if Ribeiro was shown a version of the “Carlton dance”, but this version was never fixed into a medium, copyright in that move would not subsist.

Copyright in the dance was fixed when he was filmed first performing the dance (although the take of the original performance may not be the one the aired for the TV show) and so it may well be that ownership of the copyright belongs to Ribeiro.

The test for copyright infringement is whether a restricted act (such as copying) is done in relation to the whole or a substantial part of the work. In this situation, it may well have been a case of “adaptation,” which only relates to literary, dramatic and musical work. This is because the act of alleged infringement could actually be the conversion of the dance move into the computer code, which was responsible for reproducing the dance emote on screen.

There is no general test but substantiality is to be judged qualitatively and quantitatively. The case of interest here, again, is Infopaq, in which it was held that 11 words were sufficient to constitute a reproduction in part in relation to literary copyright.

Given the apparent comparability of the dance moves (particularly when viewed side by side), a court would be likely to find that a substantial part of the dance had been reproduced. With that in mind, Ribeiro may have had a better chance if the dance had been performed and proceedings had been brought in the UK.

Broader Points on Proliferation

If a judgment is reached in the Ribeiro case, some valuable case law will be passed down (albeit not in the UK jurisdiction). With the ever-increasing interest in televised dance competitions and the constant presence of dance on platforms such YouTube, clarity in relation to dance copyright would be instructive so that artists know what type of work can be protected.

Francis Yeoh notes that the proliferation of such competing dance shows has highlighted the numerous replications of movement patterns that are taking place so we may yet see how English courts treat copyright infringement in dance (in Choreographers’ copyright dilemma, Frances Yeoh, Ent. L. R. 2012, 23(7), 201-208).

This is relevant to the stars of the music world, such as Beyoncé, who was accused of copying the work of Anne Teresa De Keersmaeker in a 2011 music video and who forced to admit that she took inspiration from the dancer.

Some case law would be welcome to clarify the position to performers of Mr. Mistoffelees and choreographers alike on what amounts to inspiration and what could be considered infringement.

First video: Anticipation, by Guinness

Second Video: Joy, featuring choreography by Norowzian