When it comes to an individual or company illegally using an entertainer’s creation, music and/or lyrics are typically what’s at stake. But what about choreography? Can dance moves be used without permission?
Recently, a choreographer filed a federal lawsuit against Epic Games for using a dance sequence he created for a music video as part of the Fortnite game without permission. The lawsuit says, in part, “Defendants capitalized on the registered choreography’s popularity, particularly with…younger fans, by selling [it] as an in-game purchase.”
This isn’t the first lawsuit of its kind by choreographers and other artists against video game creators – and certainly won’t be the last. TikTok creators have become another cause of concern for choreographers who have seen their work appear in TikTok dances that have gone viral.
Does the law protect choreography?
The Copyright Act lists choreography as a type of work that can be copyrighted. However, some of the most popular dances in history are “often considered public domain or too basic to qualify as original,” according to one dance teacher and choreographer. Individual movements and positions cannot be copyrighted.
The Digital Millennium Copyright Act (DMCA) provides some more current protection for choreographers when it comes to posting original dances online, for example, on TikTok, and for those who see their own creations being used without their permission.
When should a choreographer copyright their work?
One person who teaches copyright law says that it’s advisable for anyone to copyright their work if they believe they’ve created something that can and will make money. Of course, most choreographers and other creators can’t accurately predict when something will “take off.” Relatively new ones are the most likely to be surprised when they learn that their work is part of a video game or a viral TikTok dance.
By copyrighting a dance, a choreographer has a better chance of successfully getting it removed from TikTok or potentially winning a lawsuit against a company that is profiting off their work and creativity. As noted, however, determining whether a dance has been stolen can be more challenging than deciding whether a piece of music has. Having personalized legal guidance can be crucial to prevailing in court.