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By Hayley Duquette

The creator of Fortnite, Epic Games, is currently being sued for copyright infringement due to their use of popular dance moves in the game. Fortnite gives players the option to purchase add-ons for their characters, such as outfits, tools, and accessories. There’s also a category called “emotes” which consists of gestures and dances that the player’s character can perform.  Some of the emotes available for Fortnite players are simply poses, such as “Gun Show” and “Salute,” however, many are an instantly recognizable sequence of moves. Players can have their characters do the Running Man, the Worm, the Twist, and dozens of other dance moves. Most of the emotes are just moves and not actual works of choreography, which is why video game developers who offer such add-ons are typically free to do so. The reason Epic Games has found itself in hot water is that the Fortnite emotes also include dances that are allegedly protected by copyright.

So far, Epic Games has been sued by three individuals who are asserting their rights as creators of the dances at issue. Terrence Ferguson, better known by his stage name 2 Milly, was the first to file suit on December 5, 2018, in the U.S. District Court for the Central District of California. In his complaint, Ferguson accuses Epic Games of misappropriating the “Milly Rock” dance by creating an identical emote called Swipe It. Ferguson claims to have created the dance in 2011, and in 2014 he released the rap song “Milly Rock.”  Throughout the music video accompanying the song, Ferguson and friends perform the short dance sequence which is distinct and immediately recognizable. Both the song and video became extremely popular in 2015 and today the video has over 18 million views on YouTube. The complaint alleges that the Milly Rock dance has become synonymous with Ferguson, whose stage name even reflects his association with the dance.

Twelve days after Ferguson filed his suit, Alfonso Ribeiro and Russell Horning (aka “Backpack Kid”) filed nearly identical complaints against Epic Games. Ribeiro, an actor best known as Carlton from The Fresh Prince of Bel Air, is asserting ownership of the well-known “Carlton dance”, and Horning is asserting ownership of the famous “Floss” dance. In stories similar to Ferguson’s, both Ribeiro and Horning claim to have ownership rights in their respective dances. Ribeiro created the Carlton dance and first performed it in 1991 during an episode of The Fresh Prince of Bel-Air. His complaint states that the Carlton dance has maintained its popularity and even today “remains distinctive, immediately recognizable, and inextricably linked to Ribeiro’s identity, celebrity, and likeness.” Epic Games created an emote that is identical to the Carlton dance, which they sell under the name “Fresh.”

Seventeen-year-old Horning gained online fame around 2016 from posting videos on Instagram of himself dancing, which often included a particular dance move that he initially called “The Russell.” After Horning performed his signature move on Saturday Night Live in 2017 and then later that year in a Katy Perry music video, the public began referring to Horning as “Backpack Kid” and his dance as the “Floss.” Perry’s music video currently has over 508 million views. Epic Games released an emote, conveniently called “Floss”, that simulates Horning’s “Floss” dance. Horning is being represented by the same law firm as Ribeiro and Ferguson. Each of their complaints claims causes of action for copyright infringement, violation of the right of publicity, and unfair competition.

Fortnite is available for players to download for free, and Epic Games generates profit from the sale of V-Bucks. Players use the V-Bucks to purchase access to locked features and items, including the emotes. Fortnite’s Floss and Swipe It emotes sell for 500 V-Bucks, and the Fresh sells for 800 V-Bucks. Players can purchase 1,000 E-Bucks for $9.99. Since Epic Games profits from the sale of these emotes, copyright owners of the dances used would be entitled to relief for such use.

The Copyright Act explicitly includes protection for choreographic works, which includes dances, and copyright protection is granted immediately once an original work is fixed within a tangible medium. A copyright owner may not succeed in an action for copyright infringement, however, until they have obtained registration from the U.S. Copyright Office.  The three individuals mentioned are all currently in the process of obtaining registration for their dances; Ferguson submitted an application on December 4, 2018, Ribeiro on December 15, and Horning in July and October of 2018.

The Act gives copyright owners the exclusive right to prepare derivate works, and a computer-animated depiction of dance is most likely going to be considered a derivative work.  Thus, these cases against Epic Games will ultimately turn on whether or not the dances that Ferguson, Ribeiro, and Horning are claiming ownership of are found to be valid copyrightable material. It is tough to say exactly whether they are all entitled to copyright registration; their dances may not be complex enough to be considered a choreographic work. It is generally accepted that the dance must involve a certain degree of complexity in order to be copyrightable.  Each of the three dances at issue here is really just dancing moves, and it will likely come down to whether or not they are moves that represent an individual’s creative effort of putting together a particular sequence, or moves of less complexity that are likely to occur as a natural result of dancing.

Because courts and legislators have not provided a clear definition of what constitutes a copyrightable dance, it is impossible to say for certain whether the Milly Rock, Carlton dance, and the Floss will qualify for protection. However, based on past findings that involved more complex sequences of moves that typically accompanied the music, it is unlikely that Ferguson, Ribeiro, and Horning’s claims of copyright infringement will succeed. Their dances lack the duration and complexity that is consistent with choreographic works that have previously been afforded copyright protection.

Student Bio: Hayley Duquette is a second-year student at Suffolk University Law School, concentrating in Intellectual Property. She is a staffer on the Journal of High Technology Law. Prior to law school, Hayley received a Bachelor of Arts Degree in English and graduated with magna cum laude honors.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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