Washington Law Review

Comment

Stealing Swagger: NFL End Zone Celebrations and Fortnite's Fortune

March 31, 2019 | 94 Wash. L. Rev. 453

Abstract: Football is a staple in many American households: each week, millions watch the game. Every year, National Football League athletes benefit by taking advantage of this passion, not only by earning millions of dollars in salary, but also by signing lucrative endorsement deals. While success on the field is a starting point, an athlete with a captivating personality stands to gain even more financially. A unique end zone celebration that captures fans’ hearts contributes to that personality and makes the player more marketable.

In 2017, after announcing plans to relax the rules against end zone celebrations, the National Football League saw a rise in such celebrations. That same year, a video game called Fortnite exploded onto the scene. Fans were particularly interested in the dances they could make their video game characters perform—dances originally created and performed by pop culture icons.

Because copyright law presumes authors need a financial incentive to create, copyright law protects expressive works, including choreography. However, recent guidance from the U.S. Copyright Office denies protection to end zone celebrations. This Comment largely concurs: Given copyright’s requirements, most celebrations are too simple and therefore will not, and should not, receive protection. Nevertheless, more complex celebrations are arguably copyrightable. If Fortnite has already copied the choreography of others and profited handsomely, there is no reason why end zone celebrations could not be its next target. The Copyright Office opened the door to this kind of commercial appropriation, and now it is time to shut it.

Download Full Comment