Copyright

Choreography is protected by the Copyright Act.[ref]17 USC 102 (a)(4)[/ref] Yet, lawsuits alleging copyright infringement in dance routines are rare. Perhaps the reason why was revealed last week where a recently filed suit over dance moves incorporated into the videogame Fortnite failed to make it past a motion to dismiss.[ref]Hanagami v. Epic Games 2022 WL 4007874  U.S. Dist. C.D. Cal. 2022[/ref] The reason why? The copyright extends to the entire work, not individual dance steps or poses. Plaintiff created choreography to another artist's song, and filmed a video which he placed on YouTube. He sued Epic Games, the creators of the Fortnite video game over the ability to include an "emote" into the game which he feels improperly copies his dance moves. That's right, the offending visuals are not part of the actual game itself, but can be inserted into the game at the instance of a player. As the Court explains: "Though Fortnite is free to play, it has an in-game marketplace (the ‘Item Shop') where players can purchase virtual currency to, in turn, purchase virtual customizations for their in-game characters. These customizations include new clothes, weapons, or, as relevant here, ‘emotes.' Emotes are animated movements or dances, which players can perform in Fortnite. The emote at the heart of this case is called ‘It's Complicated.' Players can purchase the ‘It's Complicated' emote in the Item Shop to perform while playing Fortnite. Plaintiff alleges that the ‘It's Complicated' emote contains ‘the most recognizable portion of Plaintiff's Registered Choreography, the portion for the hook at the beginning of the chorus of the song[.]' The portion of the work at issue is set to four counts of music; the dancers repeat the movements twice in the song's chorus (the ‘Steps'). Having reviewed Plaintiff's video and Defendant's emote, the Court compared side-by-side still images of the dances…[t]en of the poses in the video and the emote are the same."[ref]Id. at 1[/ref] You would think that this finding would be the end of the case with a finding for the Plaintiff. However, "poses" standing alone are not copyrightable. Consider the case of Bikram Yoga College of India v. Evolation Yoga LLC[ref]2015 WL 5845415 9^th Circuit Court of Appeals 2015[/ref] which was analyzed previously in this blog post.[ref]No Need to Bend Over Backwards: Court Rules Yoga Poses Are Not Copyrightable[/ref] There, it was contended that a series of yoga poses were in fact "a dance." The Court rejected that argument stating that they were merely a part of a non-copyrightable process. Curiously, the Copyright Act does not define either "dance" or "choreography." One must look to the Copyright Office's Compendium of Copyright Office Practices for the proper definition. "The Compendium II defines ‘dance' as ‘static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.' (citation omitted) The ‘dance movements,' according to the Compendium II, ‘must be more than mere exercises, such as ‘jumping jacks' or walking steps.'" Here is where Plaintiff runs into trouble. The "poses" themselves are not "successions of bodily movement" and thus are not individually protected by copyright. According to the Court: "Defined as ‘the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole,' choreographic works are composed of a number of individual poses that, when ‘viewed in isolation,' would not be protectable. Here, Defendant contends that not only are the individual poses unprotectable, but the Steps as a whole—the two-second combination of eight bodily movements, set to four beats of music—are unprotectable."[ref]Hanagami at 3[/ref] "Guidance from the Copyright Office suggests that the Steps are unprotectable. For example, the Copyright Office rejected a claim to steps called the ‘Floss,' but when those steps were incorporated into a longer work, the Copyright Office registered the work. (citation omitted) The Copyright Office rejected a claim to the ‘Carlton' because it was merely a ‘simple routine,' (citation omitted) and a claim to a dance called the ‘Five-Petal Flower' routine, (citation omitted) And the Copyright Office explained in its Compendium, that even if the ‘Made in the USA' dance might be registered as a whole when ‘[d]uring the chorus, the dancers form the letters ‘U, S, A' with their arms...the Office would reject a claim limited to the ‘U, S, A' gesture.' Compendium (Third) § 805.5(A)."[ref]Id. at 4[/ref] "But whichever way the Court evaluates Plaintiff's Steps—two seconds, four beats of music, or eight body positions, repeated ten times throughout the Registered Choreography—Defendant has the better of the argument. There is no authority to suggest that Plaintiff's Steps are protectable when viewed out of the context of the whole of Plaintiff's work; indeed, the weight of authority suggests otherwise. On the continuum of choreography, the Steps are closer to a short routine like the ‘Floss' dance or to the ‘U, S, A' movements, neither of which would not be protectable. Numerically, the Steps make up as small component of Plaintiff's work, suggesting that the Copyright Office would not register the two-second Steps as a discrete work. ‘The fact that a dance or movement may contain more than a trivial amount of original authorship is irrelevant to th[e] determination.' Compendium (Third), § 805.5(B). Accordingly, the Court concludes that… Plaintiff is ‘entitled to protection only for the way the [Steps] [are] expressed in his [Registered Choreography],' a product of the various creative choices Plaintiff made in composing the Registered Choreography—i.e., in the entire five-minute work."[ref]Id. at 4-5[/ref]

A recent Court decision highlighted the basic copyright principle that copyright does not protect facts. This is true even though the facts are taken from your life story. The case, Eggleston v. Twentieth Century Fox Film Corp.[ref]2022 WL  3371601 E.D. Mich. 2022[/ref] alleged that the television series Empire based its central character "Cookie Lyon" upon the Plaintiff and allegedly took material from the Plaintiff's memoir "The Hidden Hand," in violation of Plaintiff's copyright. As part of the allegations, Plaintiff alleges that a film producer had a meeting with the series Producer Lee Daniels at which a copy of "The Hidden Hand" was given to him. In the complaint, Plaintiff alleges 23 similarities between herself and the "Cookie Lyons" character. The problem is that, if factual, these personality traits or events could be copied. It is the way in which those facts are expressed that creates a copyright. The Court points to a similar situation in the case of Vallejo v. Narcos Productions[ref]833 F.App'x 250 (11^th Cir. 2020)[/ref] in which it was admitted that certain events detailed in Plaintiffs memoir were included in the TV series Narcos. There, the court found that while the series "used unprotectable facts from Ms. Vallejo's memoir [it] did not copy her expression of those facts because the plot, setting, mood and the character interplay are not substantially similar."[ref]Id. at 259[/ref] And so it is with "The Hidden Hand." The Court writes: "Applying the holdings of these cases to the issue of whether a ‘real person' as depicted in a memoir can be copyrighted, it is clear that the historical recitation of individual facts that Ms. Eggleston presents in her memoir would fall on the ‘fact' side of the fact/expression dichotomy and cannot claim copyright protection. Nevertheless, certain aspects of the way her life story is expressed and depicted in her writing would be protected—a memoir is not a bulleted list of facts about a person's life, but involves significant arrangement and selection, as well as reflection and inner monologue that provides context and color to the facts…Thus, a screenwriter could not lift lines of dialogue from ‘The Hidden Hand,' nor structure a scene to mimic exactly one that Plaintiff describes. But Plaintiff does not identify any scene, dialogue, or portrayal that was copied in this way. In Narcos, the Eleventh Circuit was not troubled that the fictional character in the show was clearly based directly on the life of the real Vallejo as she appeared in her memoir. Similarly, here, using some of the facts of Eggleston's life—even if they were transferred into a new, fictional character—does not violate copyright protections without a further showing that particular creative expressions concerning the depiction of Eggleston's character that were unique to her memoir were copied… [T]he development of this issue in the caselaw as cited indicates that the pleadings do not sufficiently describe protected elements of Plaintiff's work that were infringed."[ref]Eggleston at 4[/ref] So, could the writer when creating the memoir sprinkle in various fictional events and attributes, thus turning the "factual" work into something more protectable? Sorry, but we've been down that road before, and the answer is no, you can't. As recounted in my previous blog post,[ref]It's a True Story...Except for the Part That I Made Up[/ref] the doctrine of "copyright estoppel" will kick in. "Under the doctrine of copyright estoppel, once a plaintiff's work has been held out to the public as factual the author-plaintiff cannot then claim that the book is, in actuality, fiction and thus entitled to the higher protection allowed to fictional works."[ref]Houts v. Universal City Studios.  603 F.Supp. 26 C.D. of Calif. 1984[/ref] The sum of these principles is why, much to some people's astonishment, anyone can write a book, or make a movie, or a television series about your life, even without your permission. So why do studios buy "life story" rights from people if they don't have to? First off, to protect themselves from defamation suits. Within that agreement will be the permission to fictionalize part of the person's life, and while the subject may be given a chance to review the finished product, the subject will never have the ability to demand changes. Secondly, the studio is hoping to get "inside" information or facts that will make the story more interesting that are not publically known. So as here, and in the Narcos case, once you've let the "cat out of the bag" by publishing a memoir, the facts contained therein are now free for the taking. So it may be "your" life, but you don't own it.