Let's do a bit of stage-setting for readers who aren't aware of Fortnite, the multiplayer online battle arena that is generating millions of dollars for Epic Games. Fortnite is multicolored, vibrant playground of death wherein dozens of combatants fight to be the last man/woman standing. Also included are tools to build things (hence the "fort" half) -- like walls -- to surround yourself with to stave off the inevitable. ("Inevitable" meaning a 12-year-old halfway around the world celebrating your death with a purchased "emote.")
Fortnite is free-to-play. But it still makes millions of dollars. It does this by selling players cosmetic items. After exchanging real money for Fortnite funbux, players can purchase pickaxes, backpacks, and "emotes." The last one on the list has translated into a flurry of litigation over the last month.
Emotes are mostly dances. Being that there's a limited number of instantly-recognizable dances available, Epic Games has been plucking new "emotes" from the vast pop culture wasteland. It then sells these animated sequences to players, making each celebration dance no more individually expressive than the millions of imitators spawned by the pop culture figures Epic is approximating.
Three lawsuits alleging copyright infringement have been filed against Epic Games in the last month. Rapper 2 Milly, the co-star of 90s sitcom "The Fresh Prince of Bel-Air" (Alfonso Ribeiro), and a precocious teen better known as "Backpack Kid" (born Russell Horning) have all sued Epic Games for turning their distinctive dances into pay-to-play emotes.
All three lawsuits have been filed by Pierce Bainbridge Beck Price & Hect of Los Angeles, California. While other pop culture figures have lamented Fortnite's profitable borrowing of their dance moves, only those retaining this law firm have actually acted on it.
Here's the things about the lawsuits: while they all allege copyright infringement, no copyright infringement has actually occurred. This is an extremely difficult hurdle to leap when suing over copyright infringement.
First off, the Copyright Office isn't willing to extend protection to all dance moves. As many can overlap with normal human body movements, there are some specifics that must be met. And the shorter the dance is, the less likely it is to be protected.
The U.S. Copyright Office 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.
Nonetheless, these plaintiffs claim the copying of possibly uncopyrightable human movements is copyright infringement. Here's what's being sued over in these three lawsuits -- all of which seem to be on the short side as dance routines go.
All three of the plaintiffs have made belated moves to file for copyright protection. Alfonso Ribeiro appears to have waited the longest to attempt to wring $$ from a dance created more than two decades ago. From Ribeiro's lawsuit [PDF]:
Ribeiro is the undisputed creator of the wildly popular and immediately recognizable Dance. YouTube videos depicting Ribeiro’s performance in The Fresh Prince of Bel-Air are the original depictions of The Dance.
Ribeiro is in the process of registering The Dance with the United States Copyright Office. On December 15, 2018, Ribeiro submitted an application for copyright registration of three variations of The Dance and assigned Copyright Office case numbers 1- 7226013364, 1-7226013290, and 1-7225814191.
So, Ribeiro submitted his copyright registration two days before his lawsuit was filed. Since copyright protection isn't immediately extended to simple dance moves, there's no copyright infringement to be had until after the Copyright Office allows his moves to be registered. History suggests it won't do this, putting Ribeiro right back where he was three days before this lawsuit was filed.
The lack of protection -- either implicit or explicit -- makes his claims a bit problematic.
Defendants did not seek to obtain Ribeiro’s permission for its use of The Dance for the Fresh emote. Nor have Defendants compensated or credited Ribeiro for their use of The Dance.
There's no permission to seek and no compensation required. That's how this works, thanks to the very limited protections extended to dance moves.
The other lawsuits are no better. Backpack Kid's dance [PDF] has also been submitted to the Copyright Office. He may have done it far earlier than the opportunistic Ribeiro (BK filed his applications in July and October), but he still hasn't been granted copyright protection for his dance moves.
Rapper 2 Milly has also sought protection for his "Milly Rock" dance, filing his two weeks before his lawsuit [PDF] against Epic. Like the others, he has obtained no protection for his dance moves. And, like the others, his lawsuit claims he was somehow screwed out of compensation for the copying of a possibly-unprotectable set of human body movements.
Other claims in the lawsuit are equally problematic. All three lawsuits allege copyright infringement, but then include passages that make it appear as though the plaintiffs think they're dealing with trademark law -- which is a completely different branch of IP and subject to completely different rules.
Plaintiffs are damaged by Defendants’ exploitation of the Floss and Backpack Kid’s likeness through 1) selling the infringing Floss emote directly to players; 2) advertising the Floss emote to attract additional players, including Backpack Kid’s fans or those persons familiar with the Floss to play Fortnite and make in-game purchases; 3) using Backpack Kid’s fame to stay relevant to its current players to incentivize those players to continue playing Fortnite; 4) impliedly representing that Backpack Kid consented to Epic’s use of his likeness; 5) intentionally causing the erroneous public association between the Floss and Fortnite; 6) creating the false impression that Backpack Kid endorsed Fortnite; and 7) inducing and/or contributing to the performance and misattribution of the Floss by others.
These assertions are made under "False Designation of Origin" -- something that deals with misrepresenting the source of goods. It's not technically trademark, but is usually limited to counterfeiting or violating country of origin labeling requirements. To have it applied to a set of dance moves is novel, and courts tend not to like novel arguments.
The key element here may be the reason these lawsuits have been filed in California. California, being home to Hollywood and a bunch of actors, actresses, and studios, has granted a "Right of Publicity" that protects people from having their likenesses used by entities they haven't granted permission to. The damage allegations here might find some traction at the state level, but seem unlikely to receive the federal court's blessing. Even under state law, the claims seem to exaggerate the facts at hand.
As the rapper, 2 Milly, Ferguson exploits his identity by performing at concerts, events and festivals. Ferguson was damaged by Defendants’ conduct as he was prevented from reaping the profits of licensing his likeness to Defendants for commercial gain.
Except that Fortnite didn't use 2 Milly's "likeness." It only used a small set of dance moves 2 Milly claims are his. The avatars chosen by players will often bear no resemblance to person the emote can be traced back to. Since Fortnite isn't using these plaintiffs' likenesses, there's nothing to "license" from any of them. And if the dance moves aren't able to be copyrighted, those can't be licensed either.
The same thing can be said for the state claims under California's unfair competition laws. These claims are made even more ridiculous when the plaintiffs -- or rather, their professional representation -- make patently (I know. Sorry.) untrue statements in their allegations.
As a result of Defendants’ conduct, Ferguson has been damaged by being precluded from receiving his rightful share of the profits from selling or licensing his exclusive copyright in the Milly Rock dance.
At this point, 2 Milly has zero exclusive copyright protections for his dance. It's unlikely he even has implied protection at this point, a la numerous other creations that only need to be "affixed to a medium" to be guaranteed protection. This is 2 Milly claiming he's been legally injured by an act that quite possibly hasn't happened yet and may possibly never happen.
Things look even worse for Alfonso Ribeiro, who created his dance while working on the "Fresh Prince" TV show. Since it was developed while he was employed by the studio and its first appeared during an episode of the sitcom, it seems like the studio may actually hold whatever copyright there is to the dance and may be able to claim complete possession of it, depending on the details on Ribeiro's contract.
Unless the Ninth Circuit is ready to start handing wins to plaintiffs who can't state a cognizable copyright infringement claim, these lawsuits are on their way to an early dismissal. The US Copyright Office is the only entity that can say for sure these moves are protected and it has yet to affirmatively state these belated dance move registrations are valid. The real wrinkle at this point is the state claims, which are far more coherent than anything claimed at the federal level. But even those aren't all that strong. These are dubious lawsuits that appear to have been prompted by a law firm that thinks it can carve off a piece of Fortnite's millions with a litigation dog-pile.