Copyright and Single Dance Moves

Abstract: This thesis is about the copyright protection for single dance moves. The purpose of this thesis is to come to a conclusion as to whether single dance moves could be protected by copyright in Europe and if it should be protected. These questions originate from the United State lawsuits against the gaming company Epic Games and their use and sales of allegedly copyright protected dances. The first research question is if single dance moves can be protected by copyright law. It is answered by examining the requirements for copyright protection. All authorial works are protected under EU law and dances are such subject matter that is protected according to Article 2 of the Berne convention. The key concept in European copyright law to determine whether or not a work is protectable by copyright is originality. A work has to be an author’s own intellectual creation in order to be protected. There are two important decisions from CJEU on this matter and it is the Infopaq decision and the Painer decision. These decisions explain the details of the originality requirements. A single dance move is not as complex as a full dance routine and therefore has less creative freedom for the author. Depending on whether one considers both the technical aspects such as the movement of the body, and the artistic aspect such as the combination with music and setting, a single dance move could be considered meeting the originality requirement. It does however seem like the interpretation of the originality requirement makes it difficult to consider single dance moves containing enough creative freedom for the authors, but it is impossible to establish what CJEU would rule in such circumstances since it has never been decided in Europe before. It is also important to keep in mind that the scope and meaning of the originality requirement is not completely harmonized in EU and is decided on a case-by-case basis, which means that single dance moves could be protected in one Member State and not protected in another. The second research question is if the Fortnite emotes are an infringement of the potentially copyright protected work. To answer this question the rights that copyright confer to the authors and the requirements for infringement of those are analysed and also if any exception or limitation to those rights are applicable. The conclusion is that the emotes would infringe the reproduction right, the adaption right, maybe the distribution right, but not the communication right if single dance moves would be protected by copyright. It would also infringe the moral rights. The third and final research question is if single dance moves should be protected by copyright. This is answered by examining the purpose and justification of copyright in general. An important concept discussed regarding this is that of a fair balance between fundamental rights and interests and also the general EU principle of proportion. Different rights and interests of parties affected by a potential protection of single dance moves are discussed in the light of these concepts and the conclusion is that single dance moves should not be protected by copyright since the interest of the authors does not outweigh the negative impacts it would have on the creativity of others.