It is a thing now. People suing Epic Games the maker of FortNite for using their "dance" or "dance moves" as buyable emotes (also Take-Two Interactive).
On December 4th, Brooklyn rapper 2 Milly (Terence ) sued Epic Games for appropriating his Milly Rock dance moves (see Variety link). On December 18th, Russell Horning and Alfonso Ribeiro (Carlton) both sued Epic Games for appropriating their respective dance moves, the Floss and the Dance (see CNN link, Polygon link).
In the 2 Milly and Alfonso cases, plaintiffs assert that the copyrights to their respective dances have been infringed. The unstated premise is that their dances can be registered as choreographic works. But is that true?
Choreographic works are a subset of dance (U.S. Copyright Office, Circular 52) and typically are "intended to be executed by skilled performers before an audience" (Circ 52). Choreography "consisting of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection" (Circ 52). "Social dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression" (Circ 52).
Another issue in way of these plaintiffs is whether they own the copyright. Both plaintiffs are currently attempting to register a copyright for their dances. Assuming the U.S. Copyright Office registers the copyrights, the defendant can start discovery to determiner whether the plaintiffs' actually own the dances. This will involve an examination of the employment contracts under which these dances were originally recorded. For example, as an actor, it is likely that Alfonso's dance could be owned by the production company that produced the Fresh Prince of Bel-Air.
Photo by John Benson and licensed under CC BY 2.0.