From TikTok to the Courtroom: Copyright Claims against Epic Games

Article I Section 8 of the US Constitution enshrines the right of Congress to promote scientific and artistic progress by “securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Congress has exercised this power through trademark and copyright law, protecting the intellectual property of inventors and artists of all kinds. This protection extends to dance; complete choreographic works can be protected by copyright, although individual dance moves cannot. What, then, of the 15 second dance videos with which young creators have recently gone viral on TikTok, and what of the game development studios that copy their choreography? These questions have been propelled into public discourse by a recent string of lawsuits. So far, the courts have sided with the game developers, arguing that viral dances are insufficiently lengthy or complex to qualify as a complete choreographic work. In this article, I argue that this is based on an out-of-date reading of copyright law, and that this jurisprudence must be updated for the digital age.

In September 2017, video game developer and publisher Epic Games released a free Battle Royale game mode for their upcoming video game, Fortnite, which at the time was available only through paid early access. Epic, had recently sold a 40% stake in itself to Chinese video game behemoth Tencent for $330 million, financing its shift from a video game developer “‘focused on Xbox to… a multi-platform game developer and self-publisher,” in the words of co-founder Tim Sweeney. Unlike its previous work, Fortnite was slated for release on nearly every major console. Despite initially being “the slimmest portion of the overall package” of the game, Fortnite’s Battle Royale mode exploded in popularity, attracting 10 million players in just two weeks. Epic responded by shifting to promote Fortnite Battle Royale as its flagship free-to-play game, amassing 350 million registered users worldwide by May 2020.

The game remains a worldwide phenomenon, collaborating with Hollywood studios to promote blockbuster movies and even hosting Travis Scott for a virtual concert that was attended by over 12 million players. Since users can download and play Fortnite for free, Epic monetizes its product by selling players in-game cosmetic items; these virtual products include “emotes,” which allow a player’s avatar to execute a gesture or dance move. These dances are often unmistakable imitations of choreography by artists and social media stars such as 2 Milly, BlocBoy JB, Backpack Kid, and Scrubs’ Donald Faison. Epic does not pay any of these creators for the use of their dances, generating significant controversy and the aforementioned slew of lawsuits.

That Epic is exploiting the creative product of a long list of entertainers (a great many of whom are Black) for financial gain without credit or compensation is clearly unethical, but whether it is illegal is another question entirely. A number of creators, including 2 Milly, Backpack Kid, and University of Maryland basketball players Jared Nickens and Jaylen Brantley, whose “Running Man Challenge” brought them viral fame and an appearance on The Ellen DeGeneres Show and was copied for an in-game emote, have filed suit against Epic Games, but these cases have all faltered or been thrown out.

The relevant legal issue here is copyright law; in order to successfully press copyright infringement claims under the Copyright Act of 1976, creators must prove that their dance is a work eligible for copyright and then register that work with the US Copyright Office, before finally proving in court that Epic copied their creation. According to the guidelines published by the US Copyright Office, a complete choreographic work may indeed be protected by copyright, but a dance step may not. For a work to qualify, “composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” are required. For example, George Balanchine’s famous adaptation of The Nutcracker is a copyright closely guarded by the George Balanchine trust, but a pirouette, a move that appears in The Nutcracker but is also utilized in countless ballets, cannot be protected as such. Since Fortnite dances generally last less than 20 seconds, they fall into a grey area between the two, being generally longer than a single dance move but clearly less complex than an hours-long ballet.

While it is relatively straightforward to prove that Epic has copied creators’ work, proving that the work itself is eligible for copyright has been far more difficult, and some creators’ attempts to avoid copyright jurisprudence have been unsuccessful. For example, Nickens and Brantley, along with Leo Pellegrino, another creator, have attempted to press their claims under trademark policy, instead of copyright law, and have seen their suits thrown out of court. Judges in these ruled that the Copyright Act of 1976, which explicitly covers dance, preempts the creators’ claims. This ruling is reasonable; Nickens, Brantley, and Pellegrino were likely trying to avoid arguing under copyright law due to the high burden of successfully pressing such claims. 

Faison and Fresh Prince of Bel-Air star Alfonso Ribeiro were each rejected protection by the US Copyright Office for dances copied by Epic. Backpack Kid was able to secure copyright protection for a 30 second variation of his iconic “Floss” dance as a work of choreography, and Orange Shirt Kid, also of social media fame, was awarded protection for a video of his dance, “The Random,” as a motion picture, but it is unclear whether any judge would rule that Epic is violating either of these copyrights and neither creator has refiled their lawsuit. In awarding both registrations, the Office took care to note that “[r]egistration does not extend to individual dance steps,” creating grounds for a judge to rule that the corresponding in-game dances, each of which is shorter than their source, are merely imitations of individual steps and thus ineligible for copyright.

This view of copyright eligibility and the jurisprudence it supports are too limited for the social media age. As TikTok solidifies its position as a social media powerhouse, garnering 100 million monthly users in the US alone, other platforms such as Instagram and Snapchat have begun replicating their model of an endless stream of 15 second video clips; brief dance videos in particular have become wildly popular, spurring viral trends and generating sudden fame for the young creators who popularize them. Epic Games has taken notice, and begun using these videos as inspiration, to put it generously, for their ever-expanding slate of in-game dances.

Precedent suggests that TikTok stars would face serious difficulty registering their dances as copyright works and enforcing claims against Epic, but this is due to a copyright policy that has not adapted to the evolving nature of choreographic work. Congress passed the Copyright Act of 1976, which remains the primary basis of US copyright law, in order to address the huge technological developments, such as television and radio, that had occurred since US copyright policy had last been updated in 1909. 45 years later, copyright law is in need of another update; TikTok and short viral videos would be as alien to lawmakers of 1976 as television shows and radio programs would be to those of 1909.

As social media continues to dominate the zeitgeist, far more consumers of art experience dance through the screens of their smartphones than on stage in a ballet theater. The brief dances that young creators choreograph for TikTok videos are not mere steps intended for a larger whole, but choreographic works in and of themselves. Each 15 second video is a complete performance crafted for an audience of millions, a notion inconceivable in 1976, when the Copyright Act was passed. The US Copyright Office, and the judges who preside over these claims against Epic, must adjust their reasoning to accept these brief dances as complete copyright worthy works. If Epic Games will not willingly provide credit or compensation to the creators whose work they have exploited, the law must compel them to do so.

Jack Malamud is a junior concentrating in Political Science and Latin. He is a Staff Writer for the Law Review's Blog and can be reached at jack_malamud@brown.edu.