On Wednesday, rapper 2 Milly sued Epic Games, the creators of the wildly popular online game Fortnite Battle Royale, asserting two counts of copyright infringement, two counts of right of publicity, and unfair competition. 2 Milly claims that Epic stole his dance, the “Milly Rock,” by introducing it as part of downloadable content in Fortnite. The lawsuit is Ferguson v. Epic Games, Inc., et al. in the United States District Court for the Central District of California, Case No. 2:18-cv-10110. The complaint is available online here.
For those unfamiliar, Fortnite Battle Royale is an online third-person shooter and battle royale game where, in the midst of the fighting (or perhaps after knocking out another player), players can have their characters do a short “dance.” These dances have gone viral on YouTube and in the gaming community. Players can purchase additional dance moves as paid in-game content and, according to 2 Milly, one of those downloadable dance moves – the “Swipe It” (YouTube link here) – improperly infringes upon his Milly Rock moves.
Copyrighting… Dance?
Can dance moves be copyrighted? The answer is complicated. You can get copyright protection for choreographic works but, as noted in a Copyright Office circular, “choreographic works are a subset of dance and are not synonymous with dance.” And even then, it seems like an uphill battle. As noted below, 2 Milly has yet to get a registration from the Copyright Office. Whoops. No statutory damages or attorney’s fees. See below.
Section 102 of the Copyright Act, 17 U.S.C. § 102, provides protection for “choreographic works.” The above-linked Copyright Office circular defines choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” That circular also makes clear, however, that choreography “consisting of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection.” So while choreography may be subject to copyright protection, that only remains true if it is something more than, for example, ordinary motor activities or social dances.
The circular goes on to make clear that protection is not afforded to the following categories of conduct, even though they may be unique in some respects:
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Commonplace movements or gestures – for example, individual movements or dance steps, or even “short dance routines consisting of only a few movements or steps with minor lineal or spatial variations, even if a routine is novel or distinctive.” Not protected.
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Social dances – social dance steps and simple routines are not included within the ambit of copyright protection, as “[r]egistrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves.” This remains true even where such social dances have a “substantial amount of creative expression.” Not protected.
These limitations on protectable choreography extend beyond just a Copyright Office circular, of course. As noted by the Ninth Circuit only a few years ago, the legislative history of Section 102 recognized the almost-obvious nature of these types of limitations. See, e.g., Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015) (“Nor did Congress define the term ‘choreographic work[ ],’ apparently because its meaning was ‘fairly settled.’ . . . The legislative history does explain, however, that it is not ‘necessary to specify that “choreographic works” do not include social dance steps and simple routines.’”).
The question then becomes: Does 2 Milly’s dance go above and beyond those categories of unprotectable works?
Based on our review of 2 Milly’s 2014 music video, probably not. 2 Milly’s “dance” seems to fall squarely within the unprotected category of “short dance routines consisting of only a few movements or steps with minor lineal or spatial variations, even if a routine is novel or distinctive.” Moreover, the fact that protected choreography is “typically intended to be executed by skilled performers before an audience” seriously calls into question the viability of 2 Milly’s copyright claims. He and his friends appear to be having fun, sure, but that doesn’t equate to protectable choreography. On top of all that, are 2 Milly and his friends’ movements just the type of movements that are “performed by members of the public for the enjoyment of the dancers themselves”? This remains to be seen.
But wait, there’s more. The Copyright Office circular also notes that, as with other copyrightable works, a choreographic work must be fixed in a tangible medium of expression before it can be subject to protection. Specifically, it must “reveal[] the movements in sufficient detail to permit the work to be performed in a consistent and uniform manner.” 2 Milly seemingly asserts that his 2014 music video suffices. While this remains an open question, based on our review, the music video falls short of the type of works contemplated by the Copyright Act’s “choreography” protections. The video appears to depict 2 Milly and his friends swaying and moving (to varying degrees) to his song rather than truly depicting a choreographed dance. The movement of 2 Milly and his friends – much less the video itself – is certainly not a model of consistency and uniformity.
Uh Oh – No Copyright Registration!
2 Milly’s complaint makes note of the fact that, though his music video was released around August 2014, he is only now “in the process of registering the Milly Rock dance with the United States Copyright Office”—to be clear, he submitted his application with the Copyright Office on December 4, 2018, only one day before he filed suit against Epic.
Section 411 of the Copyright Act prohibits the filing of a civil action for infringement absent preregistration or registration of the copyright. Then the question becomes: If 2 Milly’s application is rejected by the Copyright Office, does he even have a leg to stand on?
Putting that aside, however, Section 412 of the Copyright Act generally prohibits a plaintiff from recovering statutory damages or attorney’s fees for any infringement of a published work that occurs (i) after the first publication of the work and (ii) before the effective date of its registration. 2 Milly’s allegations appear to fall squarely in that category. He published his music video more than four years ago but waited until earlier this week to seek registration. Based on that alone, 2 Milly will likely be barred from recovering any statutory damages or attorney’s fees. In other words, he’ll need to seek actual damages and, really, what are those in this case?
2 Many Problems For 2 Milly?
On top of all of the foregoing, 2 Milly will need to contend with many possible First Amendment defenses. The U.S. Supreme Court has clearly held that video games are fully protected speech under the First Amendment, just like books, TV shows, and movies. See Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011). Will 2 Milly have to face an anti-SLAPP motion from Epic Games under the assertion that his state law claims are a “SLAPP”—a strategic lawsuit against public participation? It remains to be seen.
2 Milly may also face problems for his ancillary, non-copyright claims under the doctrine of copyright preemption. Section 301 of the Copyright Act, 17 U.S.C. § 301, expressly states that rights equivalent to those protected by the Copyright Act are “governed exclusively by this title”—in other words, they are preempted. Will Epic take the position that 2 Milly’s right of publicity and (perhaps more likely) unfair competition claims are really just dressed up claims for copyright infringement? This, too, is well worth consideration.
Finally, 2 Milly seeks punitive damages on his copyright claims: Problematic for Milly, punitive damages are not available for copyright infringement claims.
Regardless, at the end of the day, this will be a fascinating one to follow. Stay tuned, everyone.
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