Fortnite Sparks a Battle Royale Over the Right to Use Dance Moves

Can artists legally protect their dance moves? Believing that they can, Terrance Ferguson (aka the rapper “2 Milly”), actor Alfonso Ribeiro, viral performer Russell Horning (aka “Backpack Kid”), and James Baker (aka the rapper “BlocBoy JB”) have filed individual suits in the Central District of California against Epic Games, Inc., alleging, among other things, copyright infringement and violation of right of publicity related to the use of their respective dance moves in the popular game, Fortnite Battle Royale (“Fortnite”). Complaints, Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. Dec. 5, 2018); Ribeiro v. Epic Games, Inc., No. 2:18-cv-10412 (C.D. Cal. Dec. 17, 2018); Redd v. Epic Games, Inc., No. 2:18-cv-10444 (C.D. Cal. Dec. 17, 2018); Baker v. Epic Games, Inc., No. 2:19-cv-00505 (C.D. Cal. Jan. 23, 2019).

Fortnite—created by the game developer Epic—was first introduced in 2017, and is arguably the most popular video game on the market today. Fortnite is a third-person-shooter video game that is free to download and play. Virtual currency can be purchased that allows players to buy one or more “customizations,” including avatar skins, pickax upgrades, and emotes. Indeed, emotes are particularly popular, since they allow the players’ avatars to portray a form of expression—for example, a dance. Fortnite has reportedly generated over $1 billion in revenue through the sale of these in-game customizations.

The specific Fortnite emotes at issue in the lawsuits are “Swipe It,” “Floss,” “Hype,” and “Fresh.” The “Swipe It,” “Floss,” and “Hype” emotes are reminiscent of the viral “Milly Rock,” “Floss,” and “Shoot” dances created and performed by Terrance Ferguson, Russell Horning, and James Baker respectively. The “Fresh” emote is akin to “The Carlton” dance made famous by Alfonso Ribeiro’s character, Carlton, in the iconic show The Fresh Prince of Bel-Air. Plaintiffs contend that Epic has not only infringed their copyrights in their respective dances, but that because the dance moves are so closely associated with the entertainers, the use constitutes a violation of their rights of publicity.  Plaintiffs are seeking damages and attorney’s fees as well as a court order preventing Epic from using, selling, or displaying the dances in Fortnite. Russel Horning and James Baker also contend that Epic’s Floss and Hype emotes infringe their common law trademark rights in the names “Floss” and “Shoot” respectively.

While current U.S. copyright law protects certain choreographic works, the Copyright Office has stated that “choreographic works do not include social dance steps and simple routines.” The Office believes that choreographic works are a subset of dance rather than synonymous with dance, and that “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,” cannot be registered. The Office has said that for a dance to rise to the level of a copyrightable choreographic work, it must typically contain one or more of the following common elements:

• rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage;
  
  
• a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole;
  
  
• a story, theme, or abstract composition conveyed through movement;
  
  
• a presentation before an audience;
  
  
• a performance by skilled individuals; or
  
  
• musical or textual accompaniment.

There is no definitive case law establishing where to draw the line between movements or steps that cannot be registered and protected and choreography that can be registered and protected. Nor are there any cases that have considered the copyrightability of dance moves similar to the Plaintiffs’. Accordingly, it is not entirely clear what Plaintiffs need to show in order for a court to conclude that their dances are copyrightable choreographic works.

It is also interesting to consider the interplay between the copyrightability of Plaintiffs’ dance moves and another of their claims—that Epic’s use of their dance moves misappropriates Plaintiffs’ likenesses and thus violates their right of publicity under California common law. These allegations raise numerous legal questions related to whether individuals can be personified through (and have a protectable interest in) the use of their associated expressions. Can a movement, such as a dance, identify a given individual? Can an individual’s likeness be inherently tied to the dance moves that he or she allegedly created? Can a form of expressive communication—such as a GIF, meme, or emote—be specifically attributable to an individual?

As the law attempts to adapt to the growth of various forms of communication, these questions will need to be confronted not only by video game developers but also by developers of any technology that utilizes forms of communication that involve the transmission of expressive elements.