The Floss, Choreography and Copyright

January 12, 2019

Anita Redd recently filed two complaints for copyright infringement with the United States District Court for the Central District of California on behalf of her minor son, Russell Horning, that has captivated social media consumers and intellectual property attorneys alike—it made headlines in, among other rags, TMZ, the Variety, Newsweek and The Guardian. What makes Redd’s December 2018 filing so newsworthy is 1) Russell Horning is the Backpack Kid, a young performer made famous through Instagram and 2) the alleged copyright infringement involves the “Floss,” a trendy dance creation attributed to said Backpack Kid.

Backpack Kid’s beef is the defendants, both of which are video game makers, incorporated “Floss” into their games without consent. According to the complaints, Epic Games, Inc., maker of the extremely popular video game, Fortnite Battle Royale, capitalized on Backpack Kid’s celebrity and the Floss’s popularity by selling the Floss emote (emotes are dances or movements that players can purchase as customizations for their in-game avatars), and did not credit Backpack Kid or seek consent to do so,), and Defendant Take-Two Interactive Software, Inc. sold the “Floss” as an emote in games 2K18 and 2K19 under the name “Backpack” and did not seek permission or credit the Backpack Kid. According to the complaints, the Backpack Kid created the Floss dance in 2016, and it was popularized following the young performer’s appearance together with Katy Perry on Saturday Night Live in May 2017. In addition to direct copyright infringement, the Backpack Kid is seeking relief from the Court for contributory infringement of copyright; violation of the right of publicity under California common law; violation of the right of publicity; unfair competition; false designation of origin; trademark infringement under California common law; federal trademark infringement; and trademark dilution.

Because of the Backpack Kid cases, along with Brooklyn rapper 2 Milly and actor Alfonso Ribeiro, who are also suing Epic Games and Take-Two Interactive over dance emotes, the media buzz circling the Backpack Kid’s cases (Reed et al v. Epic Games, Inc. et al and Reed et al v. Take-Two Interactive, Inc. et al) is this query: Is dance copyrightable? While copyright is commonly associated with literary works or songs, copyright registration for dance movements is less well known.

As it turns out, dance is copyrightable. The United States Copyright Act provides in section 102(a)(4) for copyright protection in “pantomimes and choreographic works” created after January 1, 1978, and fixed in some tangible medium of expression. The U.S. Copyright Office defines choreography as the “composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and pantomime as the “art of imitating, presenting, or acting out situations, characters, or events through the use of physical gestures” (Circular 52). Choreography and pantomimes consisting of ordinary motor activities, social dances, common movements or gestures, or athletic movements may not qualify for copyright protection. Yoga poses, the waltz or an end zone dance do not qualify for copyright registration (Circular 52). Additionally, copyright protection is limited to human movement and does not extend to movement by animals or machines. An equestrian’s dressage routine, for example, would not qualify.

A choreographic work as defined by the U.S. Copyright Office typically contains one or more of the following elements: rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage; a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole; a story, theme, or abstract composition conveyed through movement; a presentation before an audience; a performance by skilled individuals; musical or textual accompaniment (Circular 52).

To be eligible for copyright registration, the U.S. Copyright Office requires that a choreographic work be fixed in a tangible medium of expression so that movements are detailed enough to be performed in a consistent and uniform manner. Accepted fixed forms of expression include dance notation; video recordings; photographs; drawings; or written description. (Circular 52).

An essential element of the Backpack Kid’s infringement lawsuit is copyright registration. Preregistration or registration of a copyright is a requirement for initiating an infringement action according to 17 U.S.C. § 411. Though registration is not necessary for protection, it is necessary to obtain compensation for infringement. According to the complaints, the Backpack Kid recently applied for U.S. copyright registrations in July 2018 and October 2018. Whether or not the “Floss” will be accepted as choreography and registered by the U.S. Copyright Office remains to be seen. But even if registration is denied, 17 U.S.C. § 411 allows for infringement action if the creator notifies the Office. A copy of the complaint is served on the Register of Copyrights (director of the U.S. Copyright Office) who, at his or her option, becomes party to the issue of registerability. As to the outcome of the Backpack Kid’s lawsuits, both teen idol fans and interested IP attorneys will find out in due course.