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Milly Rocking Through Copyright Law: Why the Law Should Expand to Recognize Dance Moves As a Protected Category

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Milly Rocking Through Copyright Law: Why the Law Should Expand to Recognize Dance Moves As a Protected Category University of Cincinnati Law Review Volume 88 Issue 2 Article 9 January 2020 Milly Rocking Through Copyright Law: Why the Law Should Expand to Recognize Dance Moves as a Protected Category Elijah Hack University of Cincinnati, [email protected] Follow this and additional works at: https://scholarship.law.uc.edu/uclr Recommended Citation Elijah Hack, Milly Rocking Through Copyright Law: Why the Law Should Expand to Recognize Dance Moves as a Protected Category, 88 U. Cin. L. Rev. 637 (2020) Available at: https://scholarship.law.uc.edu/uclr/vol88/iss2/9 This Student Notes and Comments is brought to you for free and open access by University of Cincinnati College of Law Scholarship and Publications. It has been accepted for inclusion in University of Cincinnati Law Review by an authorized editor of University of Cincinnati College of Law Scholarship and Publications. For more information, please contact [email protected]. Hack: Milly Rocking Through Copyright Law MILLY ROCKING THROUGH COPYRIGHT LAW: WHY THE LAW SHOULD EXPAND TO RECOGNIZE DANCE MOVES AS A PROTECTED CATEGORY Elijah Hack I. INTRODUCTION Picture yourself at a friend’s wedding reception. As you finish your dinner, and nervously make your way to the dance floor, a mob of young children rush past you, each performing the same dance move consisting of swiping their arms rhythmically from side to side. “Fortnite!” the children scream, as confused adults look on.1 What you have just experienced has become commonplace in the last few months due to the monumental rise of the behemoth free-to-play video game Fortnite. Created by Epic Games, Fortnite has burst onto the pop culture scene, empowering youths with a litany of ridiculous dances based off in game “emotes.” In this case, the kids are performing what they know as “Swipe It,” a popular emote from Fortnite’s Season 5. However, a closer examination of the dance shows that the move was not the product of Epic Games focus groups or video game design ingenuity. Instead, the creator of the dance was 2 Milly, a New York rapper, who dubbed the dance the “Milly Rock” when he debuted it along with his rap single with the same title. Fortnite realized the potential of the move in a children’s video game and used the move without 2 Milly’s knowledge or consent. In response, 2 Milly has filed a lawsuit for copyright infringement against the creator of Fortnite, Epic Games. The basis of the suit will be discussed in this article. Unfortunately, the appropriation of hip-hop culture, and particularly dance, is not uncommon. Many artists have had their work used by others without consent or credit, and as copyright law currently stands, these artists have little leverage in terms of legal solutions. The remainder of this Article will proceed in the following order. Part II of this Article will explore the history of copyright law, and how that history has influenced the current state of the law in respect to choreography or dance moves. Part III will then look at the fair use defense, and the merits of 2 Milly’s lawsuit. Part IV will then argue that the existing categorical limitations on the copyright of dance moves have created a space where artists are unable to legally protect their creations. The failures of the current system of copyright law leave us a space where 1. Anecdote from Yussef Cole, “Fortnite’s Appropriation Issue Isn’t About Copyright Law, It’s About Ethics,” VICE, (Feb. 11, 2019), https://waypoint.vice.com/en_us/article/a3bkgj/fortnite-fortnight- black-appropriation-dance-emote [https://perma.cc/2G6J-ZHYZ]. 637 Published by University of Cincinnati College of Law Scholarship and Publications, 2020 1 University of Cincinnati Law Review, Vol. 88, Iss. 2 [2020], Art. 9 638 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 88 appropriation is encouraged, and the fundamental rationale of copyright law—the public benefit principle—is ignored. Finally, this Article concludes by calling for a change in copyright law surrounding the area of dance. II. BACKGROUND This section will trace the history of copyright law in the United States, noting the reluctance to include dance as a protected category. First, this section examines the foundation of early copyright law as a response to the English tradition of licensing. Second, this section explores the reluctance to include choreography as material that can be protected by copyright and how some choreographers protected their work as a “dramatic composition.” Third, this section looks at the inclusion of choreography as a copyrightable category in 1976, the requirements for registration, and why choreographers still face difficulties in infringement litigation. Fourth, this section summarizes the “fair use” doctrine as a defense to copyright infringement. Fifth, this section examines the 2 Milly-Fortnite litigation as an example of the problems surrounding the lack of protection for dance moves as a copyrightable category. A. History of Early Copyright The primary purpose of copyright law has always been to benefit the public.2 Modern American copyright law can trace its origins to the Statute of Anne, passed in England in 1710.3 In 1557, to combat revolutionary ideas of the Reformation, the English monarchy granted exclusive rights over printing and distributing written works to the Stationer’s Company.4 The monopoly held by the Stationer’s Company gave it creative control over the written works of all writers.5 The Statute of Anne introduced the concept of authorship to the modern world, and no longer made writers beholden to the Stationer’s Company.6 By providing writers, and not the publishers, the right to own and make decisions with their work, the British Parliament believed they could 2. DAVID MIRCHIN, A PRACTICAL GUIDE TO COPYRIGHT LAW IN THE DIGITAL AGE (MCLE) § 7 (2002). 3. See Katie Benton, Comment, Can Copyright Law Perform the Perfect Fouetté?: Keeping Law and Choreography on Balance to Achieve the Purposes of the Copyright Clause, 36 PEPP. L. REV. 59, 64 (2008) (citing Marci A. Hamilton, The Historical and Philosophical Underpinnings of the Copyright Clause, 5 OCCASIONAL PAPERS IN INTELL. PROP. FROM BENJAMIN N. CARDOZO SCH. OF LAW 4, 4-10 (1999)). 4. Benton, supra note 3, at 59. 5. See Id. 6. Id. at 64. https://scholarship.law.uc.edu/uclr/vol88/iss2/9 2 Hack: Milly Rocking Through Copyright Law 2020] MILLY ROCKING THROUGH COPYRIGHT LAW 639 provide for the “encouragement of learned men to compose and write useful books.”7 This rationale carried into the American colonies and was the primary motivation behind what has been called the Patent and Copyright Clause, Article 1, §8, Clause 8, of the Constitution: “[The Congress shall have power] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”8 By providing protection, albeit limited protection, to an author’s work, the framers believed that they would promote progress and prosperity for all citizens.9 The right to own one’s work, the framers believed, would motivate individuals to continue to push the bounds of science, art, and literature, in turn benefitting the users and admirers of the work: the general public.10 By explicitly making such protection limited, however, copyright allows the public to build on existing works and arts.11 The Constitution creates a balance and tension between the rights of creators and artists, and the rights of the public to use and build upon those creations and art.12 This theme led to the first copyright protections with the Copyright Act of 1790 passed by the first Congress.13 The 1790 Act provided that “the author or authors of any map, chart, book or books already printed within the United States . shall have the sole right and liberty of printing, reprinting, publishing, and vending . for fourteen years from the recording the title thereof in the clerk’s office . .”14 The Act allowed for damages to be collected from anyone that printed these works without the permission of the author.15 Copyright protection was a driver of innovation and creativity in the early years of the United States and continues to be one to this day. However, the reluctance of Congress to update the Act in accordance with modern times to include certain forms of media, and their reason behind such exclusion, highlights the tensions 16 at play with the public benefit rationale. 7. Id. 8. U.S. CONST. art. I, § 8, cl. 8. 9. See Id. 10. MIRCHIN, supra note 2, § 7. 11. Id. 12. Id. 13. Copyright Act of 1790, ch. 15, 1 Stat. 124. 14. Id. 15. See Id. 16. See Kara Krakower, Finding the Barre: Fitting the Untried Territory of Choreography Claims into Existing Copyright Law, 28 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 671 (2018). Published by University of Cincinnati College of Law Scholarship and Publications, 2020 3 University of Cincinnati Law Review, Vol. 88, Iss. 2 [2020], Art. 9 640 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 88 B. Congress’s Reluctance to Include Choreography in Copyright The Act of 1790 expressly limited the categories of work deemed copyrightable. “Map, chart, book, or books” were the only listed categories of material protected by copyright in the first Act of 1790, and Congress has been hesitant to extend protection to more categories of work.17 “Choreographic works” were first deemed a form of copyrightable material in 1976, nearly 200 years after the introduction of the federal copyright.18 The reluctance to include choreography can be traced to the public benefit
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