At the beginning of this book, we briefly touched on how the game Fortnite came to be at the center of a very interesting copyright lesson and I promised we'd look more at this later. Guess what? We have finally arrived at "later".
So...why would anyone tag a game with a copyright (or trademark, in some cases) lawsuit? Did the developers steal someone's sprites? Backgrounds? Character design?
No. They incorporated some iconic dances into their character movements. And the originators weren't terribly happy about not having been asked permission. Alfonso Ribiero, well known for "The Carlton", was in the process of obtaining rightsholder status when he became aware that his dance was in the game, and in the spirit of protecting his rights, he filed to have the dance removed. Other artists became aware of their own dances being lifted, and followed suit...so to speak.
Fans of the game were confused. Why were these artists so upset? It's not like you can copyright dance.
Well, it turns out you can...but under certain circumstances. Ribiero's Carlton is a set of three steps, repeated to the left and the right. Legally, it has been decided that's just not a long enough sequence to secure copyright protection. But no one's quite sure yet how long the step sequence will have to be in order to become protected.
At the time this was initially going down, many ballet companies around the world were launching their annual performance of the holiday classic The Nutcracker. There's some disagreement over whether or not any of the original choreography has survived since the ballet's original release, but some companies swear they are preserving some part of it in their own performances. Do they have the rights? Probably not.
And it's not uncommon to see American ballet companies perform George Balanchine's choreography (or some part of it) in their annual presentation. (If you're familiar with the Nutcracker movie where Macaulay Caulkin performed with the New York City Ballet, you've seen Balanchine's choreography.) Did any of these companies license the rights to perform that choreography? Is any part of that choreography "significant" enough to rate copyright protection? It really makes you think.
Of course, going back to the companies that claim they have preserved some part of the original choreography, the question changes slightly. Dance, like many storytelling crafts, is a collection of cultural artifacts. Before recording devices, they were all preserved through training and performance; passing down through a sort of oral tradition methodology.. Does that mean there are dances and step sequences that would qualify as public knowledge or even fall into the Public Domain?
Again, it's worth thinking about.
If you're at all interested in wading through the issues surrounding the dancing in Fortnite, I've included some of the articles I personally found interesting.
The 'Carlton dance' couldn't be copyrighted for a Fortnite lawsuit: https://www.theverge.com/2019/2/15/18226180/copyright-office-alfonso-ribeiro-carlton-fresh-prince-dance-rejected-fortnite-nba-2k-lawsuit
Fortnite dance lawsuits are bad for copyright and bad for culture: https://www.theverge.com/2019/2/27/18242899/fortnite-dance-move-copyright-lawsuit-carlton-milly-rock-epic-games
Fortnite dance lawyer claims someone impersonated him to derail copyright lawsuits: (via The Verge's Twitter account) https://www.theverge.com/2019/2/19/18232122/fortnite-epic-games-dance-emote-lawsuit-david-hecht-copyright-office-fraud
Most of the Fortnite dance lawsuits are on pause: https://www.theverge.com/2019/3/9/18257385/epic-fortnite-lawsuit-ribeiro-2milly-dance-emote-lawsuits-withdrawn-pause-registration
Everybody Dance Now! Actually, Don't ... That Choreography May Be Copyrighted: http://www.trademarkandcopyrightlawblog.com/2018/09/everybody-dance-now-actually-dont-that-choreography-may-be-copyrighted/
Scalzi on Ribiero and copyrighting dance: https://twitter.com/scalzi/status/1075182887073431555
Dance and Copyright: Legal "Steps" for Performers: https://itsartlaw.com/2018/10/30/dance-and-copyright-legal-steps-for-performers/
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Copyright for Creatives
Non-FictionWe hear a lot about copyright...when it's coming into play. Celebrities and YouTube Personalities recently sued a game for using their trademark dance without permission. And then a bunch of old stories, poetry, and movies were released into the Pu...
