The digital squirrels, cyborgs and cowboys on Fortnite danced in 10-second intervals, recalled Jorge Poveda Yanez, a Ph.D. candidate who studies dance at Ghent University in Belgium. He was mesmerized by their rhythmic pulses, by these digital avatars programmed to move in unison: thrusting pelvises, flailing arms, stomping feet. Suddenly it clicked. He had seen this dance before.
Fortnite, the popular multiplayer online game created by Epic Games, is as known today for its dances, called Emotes, as it is for its free-to-play multiverse. But, Yanez suspects, along with other experts and artists, that these moves were likely appropriated from living, breathing dancers – without their consent or compensation.
“They realized their choreographies and their steps were included in the video game and they were not getting any attribution or retribution whatsoever,” Yanez said, referring to artists who say their choreography was stolen. (Emotes are sold online in Fortnite’s marketplace, and have served as the basis for many dance routines on social media apps like TikTok.)
This is, of course, not the first time someone else's artistic work was copied online. In the age of digitization, where information flows freely and crediting creators is often an afterthought, the lines between inspiration and outright theft have blurred. The problem is particularly pervasive in the world of dance due to loopholes in U.S. intellectual property law and the ease of appropriating step routines without attribution.
Yanez, an artist, lawyer and university professor, is among a growing number who think crypto has a role to play righting the wrongs enabled by platforms like Fortnite. His work with crypto – which includes university lectures and workshops – extends beyond the realm of law and into how digital innovations are changing the way people think about art.
Even if centralized platforms like TikTok and YouTube have issues, they also help people build brands, increase their audiences and distribute their content. Likewise, blockchain-based tools are not perfect solutions but do help people reclaim ownership of their work on the internet.
“It’s undeniable that [crypto] has given artists a renewed sense of agency over their practices,” he said. This is all the more important as the traditional world of dance comes to a crossroads with digital and social media.
Yanez teaches a course at the University of Ghent called "Dance and the Blockchain: Commodification and Ownership of Embodied Creativity in the Crypto Space." He also hosts workshops where he discusses how tools like NFTs can help artists monetize and protect their creations.
In the U.S., the government does not register short dance routines under the Copyright Act – even if they are considered to be “unique.” The provision, enacted in the late 1970s to protect original works of authorship, actually created a massive gap in intellectual property law around dance, Yanez said.
Even today, in order for a dance to be considered a piece of work that qualifies for registration, it must meet guidelines that show how it is presented in “tangible medium[s] of expression,” like video recordings and live performances.
Yanez’s course, which took him two years to complete, presented crypto as a tool to monetize movement in order to make up for the vagaries of the law. For artists, non-fungible tokens (NFT) can be attached to a bit of digital media – from a picture to a video to a song – and used to crowdfund artistic projects or earn money on previously produced works. They also provide new opportunities for fans and artists to engage.
Yanez sees this as a new form of digital ownership, which raises interesting questions for academics, lawyers and his students. NFTs, for instance, could help dancers show they performed a specific routine first given that the information would be tied to immutable blockchains. But this is a method that exists outside the boundaries of intellectual property law, he said.
Read more: Should You Copyright Your NFTs? / Opinion
Alandis Brassel, a media attorney at law firm Scale LLP, echoed Yanez comments about the use of NFTs to help creators. However, “They don’t provide the same protections, which leaves choreographers unable to protect certain elements of their work from unauthorized use.”
That said, there have been experiments to use NFTs as a form of copyright. For instance, Yuga Labs, the company behind the Bored Ape Yacht Club, allows token holders to build businesses around their NFT’s characters. Andreessen Horowitz, the venture capital firm, has also proposed a copyright-like classification system for NFTs.
Brassel, who also works as an assistant professor of music business at the University of Memphis, said there is “certainly room for copyright reform.” He added that the law today should aim to “account for the evolution of dance and the manner in which dance is consumed by the public.”
“The Congress that passed the Copyright Act of 1976 could not have contemplated dances ‘going viral’ on social media or being replicated by video game characters,” Brassel said. “An updated copyright law should reflect dance’s current place in society.”
These concerns were not ignored by Yanez. “Even though we did clarify [an NFT] is not the same as [a copyright], we were thinking about how powerful these alternatives are,” Yanez said. NFTs give people a type of “stewardship” to “decide how their dances are circulated, sold and if they want to commodify them [or] if they don’t.”
Conversations over commoditization
Fourteen infrared cameras hovered overhead at the Art and Science Interaction (ASIL) Laboratory in Ghent, recording Yanez and his students’ movements. The “high tech” effort was an attempt to bring his course into life – capturing the performances of everyone involved.
Over the course of a three-day workshop in August, Yanez led an hour-long panel discussion on the issues covered in his course, hosted seminars and NFT minting workshops, watched “movement demonstrations” and set up virtual reality (VR) installation demos. There was a level of artifice, as there is in any academic environment, Yanez said.
The design of the workshop called attention to one of Yanez’s major themes: the difference between traditional and modern culture. Dance, which only requires a body, is likely one of humanity’s oldest forms of artistic expression. And now that everyone has a smartphone with a camera, Yanez is interested in the line between when normal, everyday life becomes art.
Yanez’s students were particularly interested in discussing the digitization of performance art, which tends to turn experiences into something that can be commoditized. NFTs, here, seem like a potential solution and part of the problem, he said.
Read more: The Balance Between Art and IP Theft in NFT Culture / Opinion
The workshop “allowed people to express their own anxieties, plans and thoughts about blockchain technology,” Yanez said, referring to the feedback he received. Crypto essentially allows anyone to create a market around anything, introducing a type of financialization with which many are uncomfortable.
This issue is particularly acute in contemporary art spaces, where concerns are raised about selling out and authenticity. Even if NFTs can seem like “cash grabs,” Yanez said, “we need to shatter these damaging ideas that artists need to be these bohemian, precarious people who always need to be struggling for money, because that’s working against us.”
Thomas Mack, an attorney at law firm Mack Legal PLLC, put the problem in a more practical way: “[Crypto] enables digital scarcity in a way that was not previously possible, while also allowing creators new revenue streams.” In particular, Mack noted how some NFT platforms enable royalty payments to artists paid every time a token exchanges hands.
If the social media panopticon means that any “cultural practice and expression” can be appropriated or put up for sale, isn’t better that you can set your own price, Yanez suggested.
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