Fortnite dance lawsuits are bad for copyright and bad for culture

Fortnite is one of the most popular and profitable video games in history, and its publisher Epic is copying creative work from children and independent artists without paying them. So it’s not surprising that seven people have sued the company, claiming Epic broke copyright law by turning their dance moves into Fortnite emotes. These suits are exploring interesting new legal territory. But if they succeed, it could be bad for dance, bad for copyright, and bad for the culture these lawsuits are ostensibly trying to protect.

For anybody who’s not familiar with Fortnite, emotes are short avatar animations that players can buy or earn. Like other cosmetic in-game items, they’re often fun because they’re familiar. You can get generic acrobatic moves or fist pumps, but also emotes based on John Travolta’s Saturday Night Fever dance or the “Salt Bae” meme. And in an increasing number of lawsuits, people who inspired emotes — like Fresh Prince of Bel-Air star Alfonso Ribeiro and rapper 2 Milly — are claiming that Epic violated their copyrights.

Beyond the larger ethical questions, this is a tough legal argument. The US Copyright Office rejects “short dance routines consisting of only a few movements or steps,” as well as “social dances” that aren’t designed for skilled professional performers. (While some of the lawsuits involve dances with registered copyrights, those appear to cover larger sequences rather than a single move.) But experts aren’t completely dismissing it, because there’s understandably not much case law covering video game dances.

If a court does rule against Epic, it would effectively be saying that someone can copyright a seconds-long sequence of movements, then prevent anyone else from performing and recording those movements without paying royalties. And that’s a really big deal.

Under this framework, viral dance trends like the dab could become a legal morass — the way that challenges based around specific songs can be. Most complaints probably wouldn’t come from individual artists, but from conglomerates like Viacom, Sony, or Disney, which own huge amounts of the pop culture landscape. Since it’s not too hard to come up with a single dance step, a shadow industry of trolls could even do something like copyright a wide range of physical motions, then weaponize them during Super Bowl halftime shows or any other big public dance performance.

If dance moves get defended as stringently as songs, internet companies will presumably have to police unauthorized dances, since they can potentially be held liable for users’ copyright infringement. In its most extreme iteration, this would mean YouTube adding something like a movement-analysis feature to its Content ID system, using machine learning to scour uploads for illicit moonwalking. Viral stars would hire enforcement services like CollabDRM to register copyrights for distinctive gestures or dances, so they could claim royalties from anyone who copied their moves.

We’ve already seen the downside of expansive copyright rules online, with automated systems accidentally flagging white noise or birdsong as infringement, viral videos getting pulled offline for using audio clips without permission, and scammers using copyright strikes to extort YouTubers. It can be hard enough to determine when directly re-posting a copyrighted image is legal — let alone imitating a few seconds of someone else’s physical motion, either through a recording of your physical body, or as an animation for a virtual avatar.

And even more than memes or folk songs, dance moves often evolve with the help of a whole subculture. The latest Fortnite lawsuit, for instance, covers the “Running Man” dance, which is described as the sole creation of two former University of Maryland basketball players. But other people have traced the step back to the New Jersey club scene. It’s unlikely an official “owner” would have sued the players for copyright infringement — but if a few people end up with legal control over a community effort, it discourages that kind of collaborative creation. In the long term, copyright can even hurt efforts to preserve culture, because it makes copying media legally thorny.

A company selling an artist’s signature dance isn’t ethically equivalent to a YouTuber imitating John Travolta. Intellectual property law has been used to protect small creators — it helped the people behind two famous internet cats get compensation after Warner Bros. used their creations in a game, for instance. And beyond the money, Epic’s actions raise serious and meaningful questions around when it’s right to appropriate elements of a culture. Critics have argued that Fortnite emotes are unethically divorcing dances from their original context and erasing the work of artists (particularly black artists, who have filed the majority of these lawsuits) even if they’re legally defensible.

But none of this justifies extending our existing copyright protections — which are easily abused, can last for more than a century, and sometimes don’t even make sense for digital media — to cover something as fundamental as a dance step. Because ultimately, the history of copyright law suggests these policies probably won’t be used to help the communities whose work Epic is exploiting. They’ll just help other companies turn even more pieces of shared culture into private property.