By Vivek Jayaram
vivek@jayaramlaw.com
Fortnite is the most popular video game in the world, earning in the neighborhood of $300 million a month. Leading the charge into the new billion-dollar frontier of esports – the moniker given to the world of competitive, organized video gaming – Fortnite is changing the way gaming industry professionals monetize video games. But one of its biggest sources of revenue —dance “emotes” — are now under legal scrutiny from three plaintiffs that claim to have created them. Studios like Epic, who developed Fortnite, sell its emotes for $5 to $10, generating hundreds of millions in monthly revenue earned by the battle royale phenomenon.
The first case was filed by rapper Terrance Ferguson, who performs and records under the name “2 Milly.” Earlier this year, Epic put Mr. Ferguson’s signature dance, the Milly Rock, into Fortnite as an emote called “Swipe It.” Ferguso – and later, Chance the Rapper – accused Epic for exploiting the art of black performers for its own economic interests.
The second lawsuit was filed by actor Alfonso Ribeiro, the actor most well-known for portraying Carlton Banks on the 1990s hit “The Fresh Prince of Bel-Air.” His signature dance, known to Fresh Prince fans as “The Carlton,” was turned into a Fortnite emote called “Fresh.”
The third lawsuit was filed by Russell Horning, also known as “Backpack Kid.” Mr. Horning, who is only 17-years old, popularized the floss dance, which was also incorporated into an emote on Fortnite.
Pierce Bainbridge Beck Price & Hecht LLP, a litigation boutique based in Los Angeles, represents all three plaintiffs. The theory of the plaintiffs’ cases is quite simple: by using each of the plaintiff’s dance moves in the video game without written consent, Epic is committing copyright infringement and violating each of the plaintiffs’ right of publicity. For these violations, the plaintiffs seek damages; presumably, they seek to disgorge some of the extraordinary profits made by Epic in connection with Fortnite.
Dance moves generally are not entitled to copyright protection under the United States Copyright Act, unless they rise to the level of “choreography.” When considering whether a work is “choreography,” the law generally considers several factors, including the presence of rhythmic movements from a dancer’s body in a defined space; compositional arrangement into a coherent, integrated whole; musical or textual accompaniment; and dramatic content such as a story or theme. The works must additionally have a sufficient level of original authorial contribution, which means that they must be independently created and contain a sufficient amount of creativity.
Historically, social dances, simple routines, or ordinary motor activities have not been protectable under copyright law for a pretty simple reason: protection in this manner would chill creativity and expression. For example, if Michael Jackson’s “moonwalk” were registered as a protectable work of copyright, then anybody who does their best Billie Jean at a wedding and puts that video up on YouTube could potentially find themselves defending a lawsuit for copyright infringement. These issues simply have not been squarely addressed by the Federal Circuit Courts or the United States Supreme Court. In other words, we don’t really know what the law is in this particular area.
Once a plaintiff demonstrates that its dance is protectable (probably the most substantial hurdle for these plaintiffs), it still has to prove that the Fortnite emote’s dance moves are substantially similar to its own. This might not be so difficult for these plaintiffs, but they each have to overcome other potential defenses. Mr. Horning, for one, may have popularized the dance in 2017, but Epic and others have argued that this dance has been around for several years, when Mr. Horning was not yet a teenager. In Mr. Ribeiro’s case, agreements he signed with the producers of “The Fresh Prince” might strip him of standing to sue in the first place. In other words, he might not own the dance he created if he did so under a work for hire or other contract with the producers of the show. There’s also been some chatter that “The Carlton” itself was lifted from the famous Courtney Cox dance from Bruce Springsteen’s 1984 “Dancing in the Dark” video.
The gaming industry remains innovative and extremely profitable. While it seems philosophically unfair to allow companies like Epic to profit off of someone else’s creative expression without their consent, maybe they are just taking advantage of the fact that the courts and the statute have been unclear on the issue of infringement as it relates to dance. These cases recall Solid Oak Sketches, LLC v. Visual Concepts, LLC, in which several well-known NBA stars are represented in a video game by digital avatars which strive for an accurate reproduction of the players – i.e. popular players such as LeBron James or Stephen Curry are reproduced digitally, down to every detail, including their famous tattoos. But where the Solid Oak defendants have a strong fair use defense – I mean, many legal commentators believe that Lebron James should be able to license his likeness to whomever he pleases, ink or not – Epic’s best defense lies in the inherent protectability of the dances themselves, not any fair use defense.
It will be interesting to see how these cases play out. Given our work with clients and brands that are constantly creating content that contain potential third party IP, the result of these cases could guide how many in our orbit continue to do business.