What do Fresh Prince actor Alfonso Ribeiro, rapper 2 Milly and Instagram’s Backpack Kid have in common? They are all suing US games developer, Epic Games, for using their dance moves in the best-selling game, Fortnite.
Fortnite Battle Royale was released in late Summer 2017 as a free download and now has more than 125 million players. Although play is free, players can pay to customise their avatar with downloadable dance moves called “emotes” which have helped Epic net an estimated $2 billion last year. However many of the emotes are based on or replicate existing popular dances and may be deemed unoriginal.
One video on YouTube, uploaded by LFP Gaming, shows a variety of emotes along with videos of the dances where they first appeared in popular culture. Some of the originators have complained but not sued, for instance Chance the Rapper, Snoop Dogg and Donald Faison from Scrubs. However, Ribeiro, 2 Milly and Backpack Kid have filed suits against Epic in the District Court in California.
“Carlton Dance” as performed by Alfonso Ribeiro vs Fortnite emote
Ribeiro’s suit can be read here, 2 Milly’s here and Backpack Kid’s here, the former also taking action against 2K Games for their use of the Carlton Dance. They all allege that Epic took their dance moves and incorporated them into Fortnite without permission or compensation. They ask that Epic remove the dances from the game and pay unspecified shares of the revenue as well as punitive damages.
In addition to claims of copyright infringement, the suits all claim under competition law that Epic has unjustly enriched themselves by misappropriating the plaintiffs’ copyright and likeness. They also claim that, through the same misappropriation, Epic violated their right to publicity. In addition, Backpack Kid claims for trade mark infringement and that Epic have falsely designated the origin of the Floss, a claim similar to “passing off”.
One reason for including these other heads of claim is likely to be that none of the dance moves have yet been registered with the US Copyright Office. As in the UK, artistic, graphic and literary expressions are protected by copyright law automatically, provided they are original. However, in the US, an author can choose to register their work with the Copyright Office to gain greater protection. Successfully registering their works would benefit the plaintiffs hugely as it is not clear whether their works automatically qualify for protection.
The suits all state that the plaintiffs are in the process of registering. To do this, they will have to show that their dance moves are sufficiently original. On the face of things, it would seem that is the case for each dancer. However, a clip of Ribeiro claiming he “stole” and “combined” dance moves belonging to Courtney Cox and Eddie Murphy will surely lead to debate as to the Carlton Dance’s originality.
Backpack Kid’s Floss Dance inspired this Fortnite emote.
The plaintiffs will need to show that their dances are original, meaning not copied and originate from hat creator. The Copyright Office and the Courts would likely want to analyse the Carlton Dance to ascertain just how much of an original expression it is and how much of it is copied from the other dancers.
The issues do not end there for Ribeiro. Considering that the Carlton Dance was first performed on the 1991 Christmas Episode of Fresh Prince of Bel-Air, he himself may not have any rights to the dance as it was made in the course of employment. Unless there is any agreement to the contrary, the employer is the first owner of the copyright and so the show’s producers may well have a claim to ownership.
The plaintiffs will also have to show the Copyright Office and the Courts that their dances are sufficiently well known. This means producing video evidence of the dances being performed by enough who credit them. This may be a problem given that the dances are also widely known as “Fortnite Dances.”
2 Milly’s “Milly Rock” on Fortnite YouTube video:
Protection of Dances
The biggest hurdle they must clear is the distinction in the US Copyright Act 1977 between “choreographic works” and “social dances”. United States Copyright Office Guidance on the 1976 Act states at Ch. 3 para. 3 that:
“‘Choreographic works’ is understood to mean dance works created for presentation to an audience, thus excluding ballroom and other social dance steps designed merely for the personal enjoyment of the dancers. The legislative reports state that “choreographic works” do not include social dance steps and simple routines.”
There are a couple of things to note here, the first being that the dances may be too simple. The US Copyright Office say that they“cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.” The Milly Rock is a simple two-step dance. The only thing that distinguishes 2 Milly’s two-step from other two-steps is various hand movements or “minor linear or spatial variations.” He may therefore have a hard time convincing the Office otherwise.
The Floss has six-moves. The dancer makes six swings of their arms from left to right. With each swing, the hips are swung in the opposite direction. At the second and fifth swings, the arm leading the swing is swung back behind the body. The whole thing can be completed in under 10 seconds, even slowly. For this reason, Backpack Kid’s dance may be too simple as well.
The Carlton is the more complex of the three and has, in its simplest form, around 20 steps, making up three different movements. However, it is closer to being a simple routine than a choreographed works, such as the Nutcracker or Le Corsaire.
The second point to note, although this may be academic, is that the dances may be social steps.
Backpack Kid first performed the Floss on Instagram, where it was copied many times over. 2 Milly has praised others who have incorporated his dance into their music videos and the Carlton Dance had a life of its own as a widely enjoyed dance long before Fortnite came along.
Nevertheless, the Copyright Office and Court will have a task to determine whether or not this social reception was part of their design. A task made even more difficult given that this question has never been considered by courts in the USA. There is simply no case law that touches on the question of what distinguishes a social or simple routine from a work of choreography.
If the dances are too simple or too social in nature, not only will they not be registered, but they will not attract copyright in the first place.
If this is the case, the plaintiffs will be forced to drop those claims that rely on copyright infringement or else they will be complaining of something that has not actually happened.
The social dance question may be the more interesting point of law, but it is likely that the dances are deemed too simple before the Copyright Office and Court get onto answering it.
Nevertheless, the uncertainty around this novel point of law has already led Turn 10 Studios to quietly remove the Floss and Carlton dances from their game Forza Horizon 4.