Ask a Lawyer: Can Rappers Get Paid for Creating 'Fortnite' Dances?

The legal short answer is, well, it's complicated.

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Oct 12 2018, 8:04am

Screengrab via YouTube and Fortnite

Earlier this summer, Chance the Rapper took to Twitter to reprimand Fortnite, the wildly popular video game, for its appropriation of dances created by hip-hop artists. Players can purchase features called “emotes,” or dances, which their avatars use to express themselves on the battlefield or communicate with other players. Many of these “emotes” draw inspiration from rap videos and their associated viral dance crazes, including 2 Milly’s “Milly Rock” dance, Blocboy JB’s “shoot dance” and Psy’s “Gangnam Style” video – although there is no attribution or mention of the artists who created them.

Chance called out the game for failing to compensate the “Black creatives [who] created and popularised these dances but never monetised them. He also suggested that Fortnite “put the actual rap songs behind the dances that make so much money as Emotes” – meaning that if Fortnite paid a license fee or royalty associated with use of an artist’s music, at least it would be compensating the artist for the music in connection with the dance moves it is selling as emotes.

These dances certainly seem to be proving success for Fortnite. Since its launch last year, the game has generated over a billion dollars in revenue – and it’s expected to net as much as two billion in 2019. As the game is offered for free, all of Fortnite’s money is made through selling various in-app add-ons, such as emotes and skins for avatars. The fact that Fornite sells the emotes individually (as opposed to as part of the whole package of the game), is significant in that it attributes a direct value to each dance move.

In contemporary hip-hop, a viral dance move can be paramount to a song’s success. In some cases, a dance can become uniquely tethered to the artist who popularised it – Bobby Shmurda’s “shmoney dance” became a key feature of his 2014 breakout hit “Hot N****,” and Silento’s “Watch me (Whip/Nae Nae)” led thousands of fans to mimic the artist’s dance moves on social media. This association means that a few moves – even in the abstract – can quickly call to mind a specific artist or song, indicating that the dance move is serving a branding function for the artist and their work.

Still, the Fortnite situation suggests that artists have yet to figure out how to protect their dances from overt commercialisation by others – and to receive adequate attribution and compensation for their work. Both 2 Milly and Blocboy JB have publicly expressed disapproval over the use of their dance moves on Fortnite, begging the question: Can dance moves popularised by an individual be protected?

Though there haven’t been any recent public-facing disputes to this end, there’s a chance that with some clever legal argumentation, one could make a good case for a dance move being protected. After all, Michael Jackson was able to secure a US patent for his gravity-defying lean from the music video for “Smooth Criminal,” because he invented the shoe that made it possible. But patents are notoriously expensive (prosecution of even simple patents can cost thousands of dollars) and difficult to obtain; they’re also held to a high standard of novelty, which may be hard to argue for in the case of “emotes,” which are not associated with any invention. Instead, the dances that Fortnite has appropriated are more likely to be considered creative or performative works, better protected by other legal concepts.

Copyright allows authors of original literary, musical, visual, and other artistic works to protect their creations from exploitation. The US Copyright statute expressly designates choreography as a form of expression that is protectable, but not individual movements. An emote is comparable to a note from a song – it is only protectable if used in connection with other elements to create a larger compilation. In the case of longer emotes – such as ones that mimic more than one or two moves – one might be able to make a case for copyright infringement. Since most if not all of the the emotes are only a few seconds long in total, though, any hypothetical copyright lawsuit would be an uphill battle.

Even though most of the emotes are brief, they still evoke an immediate association with their originators: Dances associated with Blocboy JB’s “shoot dance,” Psy’s “Gangnam Style” pony dance, and 2 Milly’s “Milly Rock” dance were quickly recognized, by fans and the artists themselves, as originating from their respective creators. Other uses of these dances have elicited similar reactions – such as Pizza Hut’s recent television advertisement featuring Antonio Brown, and Juju Smith-Schuster performing Blocboy JB’s “shoot dance.” For the purposes of any legal analysis, this recognition of a direct connection, especially by consumers, is significant. If consumers are confused about who is behind a specific product, or mistaken about whether or not a celebrity has endorsed a product, an artist is more likely to have success arguing that he or she is aggrieved by the appropriation.

Trademark law and right of publicity laws both serve to protect elements of a brand – including that of an artist or celebrity – from this kind of confusion. Trademarks were originally limited to words and logos, but the range of protected formats has evolved and expanded in recent years, as brands have become more innovative in their marketing strategies. For example, nowadays trademarks are construed broadly enough to include colour (think of Tiffany’s blue boxes), sounds (the NBC “chime”), and even motion – the manner in which Lamborghini doors open, sliding parallel to the car and upwards, is a registered US trademark.

To be trademarked, a creative work must meet the US trademark office’s definition of “distinctive” and serve to distinguish origin. Although there are very few motion marks currently registered on the US registry, a short dance move made famous in connection with a specific artist’s performances could arguably fall into this category. As with any untested legal regime, obtaining registration or alleging infringement could be complicated for artists to take advantage of in this way, but it could be productive.

Additionally, many states have expansive “right of publicity” laws, which extend to any unequivocal elements of a celebrity’s persona – such as their name, their likeness, their image, even a performance – and grant individuals the right to prevent commercialisation of these elements. Generally speaking, if an artist claims they have popularised a dance so much so that that it has become synonymous with their brand, commercial appropriation (such as use in an advertisement, or as a feature sold on a video game) could infringe upon that artist’s “right of publicity.” There are cases to support this contention; a 1977 Supreme Court case, for example, acknowledged an Ohio man’s right to protect a 15-second performance of himself as a human cannonball.

Of course, there is certainly no guarantee that any of these avenues would prove fruitful for an artist looking to protect a dance move, but perhaps even the threat of an arguable lawsuit could be enough to pressure larger entities to settle. For what it’s worth, 2 Milly has claimed he is exploring legal action. There is no doubt that the overt commercialisation of these appropriated dance moves rings with unfairness, but as of now, it’s still uncharted territory. As viral dances become increasingly inseparable from the artists who create them, perhaps the legal conversation surrounding their appropriation will evolve as well.

Jessica Meiselman is a lawyer and writer based in New York. Follow her on Twitter.

This article originally appeared on Noisey US.