May I Have This Dance?

May I Have This Dance? Fortnite Developer Sued Over Viral Dance Moves

By: Danny Brown

            Epic Games Inc., the developer of the absurdly successful videogame Fortnite has recently been served several lawsuits by individuals claiming the company has directly infringed on copyrighted subject material and misappropriated rights of publicity.[1] Namely, the plaintiffs allege Epic Inc. through the game Fortnite has infringed on dance moves owned by the plaintiffs, and that Epic has done so to the tune of tremendous monetary gain.[2]

Although at first-glance the situation appears almost humorous, the lawsuits actually introduce complex legal issues. The first reason is because of the sheer amount of money Fortnite produces. In the first year Fortnite was released, the game netted Epic games $1.2 billion dollars and Epic made an estimated gross $3 billion dollars in profit.[3] Fortnite recently became the highest grossing video game of all-time and has garnished world-wide attention. However, how Epic makes money from Fortnite is as important as the amount of money made. This is because Fortnite is a free-to-play game, meaning anyone with the proper hardware can play the game without paying any money.[4] Rather, Epic makes money off its users almost entirely through microtransactions.[5] In a nutshell, instead of paying to play the game itself, users pay for cosmetic upgrades (often called emotes) for their online characters.[6] Importantly for this blog, these purchasable emotes include viral dance moves that users can buy for their characters to perform in-game. Therefore, a significant amount of the $3 billion Epic received is actually from the dance moves sold to users.[7] Although the gameplay itself is the main draw for players, what individuals are actually spending money on are “upgrades” that do not have any impact on gameplay.[8] In the upcoming legal battles, who can exploit these viral dance moves is both crucial and unclear.

At the time this blog was written, four individuals have filed suit against Epic games with several others expressing discontent with the company.[9] The complaints allege, among other things that Epic games infringed on their dance moves and have unfairly profited from the dancers’ likeness.[10] In 2 Milly’s[11] complaint he specifically alleges Epic brazenly exploited dance moves from African-American talent in particular. Specifically he cites a dance from a Snoop Dogg music video, the “Carlton” dance from The Fresh Prince of Bel-Air television show, a dance performed by Will Smith from the same show, the dance in Marlon Webb’s “Band of the Bold” video, and Donald Faison’s dance from the show Scrubs as examples of emotes used by Epic.[12]

The claims for both copyright and misappropriation of likeness present interesting issues. For the plaintiff’s copyright claim, the largest obstacle is likely whether the moves could be interpreted by the court as choreography or pantomimes.[13] The Copyright Office has stated that “individual movements or dance steps by themselves are not copyrightable” and that “social dances[14]” too are not copyrightable.[15] The court will have to decide if the dances, often lasting only a few seconds each warrant copyright protection at all.  Another obstacle is that tracing the ownership of the dances may be challenging. Supposing anyone can own it at all, whether the “Carlton” dance is owned by Ribeiro or by NBC will likely be subject to debate.

Furthermore whether Epic violated the plaintiffs’ right of publicity is also unclear. Right of publicity is governed by state law and although California is considered to offer strong protection this will be an interesting outcome.[16] For many of the plaintiffs the moves themselves represent the whole (or significant amount) of the individual’s source of fame. Because the viral nature of the dance moves, the move itself becomes more recognizable than the performer of the move. On the other hand, Epic appears to have used the moves without the performers’ consent to huge economic advantage. Therefore, whether the dance moves equate to the performer’s likeness will be a crucial determination. If likeness can be expanded to include viral dance moves then Epic could be facing huge payouts. Only time will tell if the courts will be willing to extend publicity rights to viral sensations.

These cases offer a novel chance for courts to tackle Intellectual Property rights in a new age of user-generated viral content. The unique combination of money, video games, celebrities, viral phenoms, race, and intellectual property should ensure this issue remains an important and interesting topic in the entertainment industry. We live in a viral world where 150 characters, or a few seconds of video can result in fame or infamy. These lawsuits present the court with an opportunity to interpret Intellectual Property laws in a new light than ever before.

[1] Tom Marks, Can You Actually Copyright a Fortnite Dance Emote? (Jan. 15, 2019), https://www.ign.com/articles/2019/01/15/can-you-actually-copyright-a-fortnite-dance-emote

[2] See Complaint, Ferguson v. Epic Games Inc. et al., No. 18-cv-10110, complaint filed, 2018 WL 6427714 (C.D. Cal. Dec. 5, 2018).

[3] Lucas Fortney, How Does Fortnite Make Money? (Dec. 28, 2018), https://www.investopedia.com/tech/how-does-fortnite-make-money/.

[4] Id.

[5] Id.

[6] Id.

[7] There is a distinction between emotes sold directly to the consumer, and those received indirectly through purchasing game-passes which enable the buyer to receive several different in-game bonuses. Taylor Hatmaker, How Fortnite’s Dance Moves Sparked New Lawsuits Against Epic Games (Dec. 2018), https://techcrunch.com/2018/12/18/fortnite-dances-epic-sued/.

[8] Fortney, supra note 3.

[9] BlocBoy JB, 2 Milly, Alphonso Ribeiro, and Russell “Backpack Kid” Horning have all initiated formal lawsuits against Epic, while other artists and celebrities have gone to Twitter to voice their frustration. Julia Alexander, BlocBoy JB Sues Epic Games Over Popular ‘Shoot’ Dance Emote (Jan. 23, 2019), https://www.theverge.com/2019/1/23/18194912/blocboy-jb-fortnite-sues-epic-games-shoot-dance-emote-backpack-kid-2-milly.

[10] See e.g., Complaint supra note 2.

[11] 2 Milly is the aka name of rapper Terrence Ferguson who filed a complaint in the United States District Court in the Central District of California for the use of his “Milly Rock” dance. Id.

[12] Id.

[13] See 17 U.S.C. § 101(a)

[14] Social dances are done with the intent to bring enjoyment to the dancers themselves not an audience. U.S. Copyright Office, Copyright Registration of Choreography and Pantomime (Sep. 2017), https://www.copyright.gov/circs/circ52.pdf at 3.

[15] Id.

[16] See generally Cal. Civ. Code § 3344 for California’s right of publicity statute.