This is an update to my earlier blog post about people suing a computer game company for using their "dance" moves. In that post, I discussed that the lawsuits were premised on the assumption that the dances could be registered as choreographic works.
On Monday, February 11th, Epic Games filed a motion to dismiss (Dkt 50) in the Ferguson v. Epic Games lawsuit and there was a whopper of an exhibit (Dkt 59).
On December 19, 2018, the US Copyright Office refused for the second time a request to register a claim in choreography for the Milly Rock Dance (Dkt 59, hosted on Mega.nz). On October 16, 2018, the US Copyright Office first refused to register the dance as a choreography because it was "not a choreographic work, but rather represented a simple dance routine" (page 1). On December 4, 2018, a second application for copyright was submitted. The Copyright Office found "the movements represented in the video ... depict a simple routine made up of social dance steps and do not represent an integrated, coherent and expressive compositional whole and is thus not eligible for copyright registration" (pages 1-2).
Assuming the plaintiff is unable to persuasively argue that the dances are copyrightable, then the copyright infringement claims will be dismissed and the only remaining claims, and probably the better claims, are the right of publicity claims.
Image is from Library of Congress in the public domain.