Can a Dance Move be Copyrighted?

April 5, 2019

Everybody Dance! students love to dance of course. And they’re not shy about trying new dance forms, combinations, putting themselves out there, or making mistakes. To them, dance is not about competition or who created a particular move or who can execute a step the best; it’s about exploring their own creativity, working hard to master technique, expressing themselves, and just dancing

They love to learn those new and even old moves that have gone viral – remember the funky chicken, the robot and the twist? It’s so fun to watch them mimic moves that either span decades or have just hit digital platforms.

The last thing they’re thinking about – as they laugh while “flossing” for the hundredth time – is that gaming companies are being sued for featuring well-known dance moves in video games (they probably play!) without the creator’s permission.

Recent articles written about the makers of Fortnite facing multiple lawsuits for “stealing” famous dance moves bring this to the dance stage. Do you recognize The Carlton Dance performed by Fresh Prince of Bel Air star Alfonso Ribeiro? Or Flossing performed by Backpack Kid Russell Horning on Saturday Night Live, apparently upstaging Katy Perry? Or Swipe It created by Brooklyn rapper 2 Milly? If not, just play Fortnite and you’ll quickly be in the know.

The main question is, “What can you do if a dance move you created suddenly appears in a video game or other profit-making production?” The answer is simply, you can sue, alleging copyright infringement.

Can you really copyright a dance move? Well, yes, but you can’t just say the move is yours without evidence.

According to Alex Tutty of specialist entertainment law firm, Sheridans, in Can you really sue Fortnite for ‘stealing’ your dance moves?, “A dance can be protected under copyright law in England under the protection afforded to literary, dramatic or musical works. But copyright can subsist in it only when it is recorded in writing or otherwise. It doesn’t just exist because you did the dance; it needs to be written down or filmed.” Easy enough, right? Especially since these moves have gone viral – videos of the creators articulating them are everywhere!

Not so fast. It’s actually quite complicated. As Tutty continues, there may be questions as to who owns the dance, can the creator prove he/she created something new, or that the person or company “stealing” the move did not come up with it independently. Then there’s the choreography and the length of the move. US law states that you can’t copyright “social dances” like the conga or salsa.

So, what does this mean for Fortnite? Well, if any of the moves above are classified as social dances, Fortnite wins. As for the length of a move, “de minimus discrete dance steps cannot be registered for copyright protection.” How long does it take to execute full “flossing”?

We’re not really sure, and also not too concerned. We’re just happy that dance is getting so much attention, that viral moves are inspiring people to dance, and that our Everybody Dance! students can dance their hearts out without worrying about whether they’re stealing a move.

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