It’ll be hard to dance out of this one.
An actor, an influencer, and a rapper have filed lawsuits against Epic Games Inc., the creator and publisher of “Fortnite”, over the use of certain dances in the game, alleging copyright infringement. Fortnite is a survival shooter, battle royale, “king of the hill”, or, last person standing video game. The game has become extremely popular, with Epic reporting to media outlets that it now has up to 200 million players. Players can create their own worlds and battle arenas — and at the center of controversy, players can choose what dance their characters perform when they win.
Alfonso Ribeiro, best known for his role as the beloved character of Carlton on the 1990s hit television show “The Fresh Prince of Bel Air”, is suing Epic over the use of a dance he made popular on the show. The dance, usually referred to as “The Carlton Dance”, can be seen in the game as a function when a player wins. Fortnite calls the dance “Fresh” and game players can purchase various dances known as “emotes” for their characters, including another called “Rambunctious” which mirrors a dance performed by Will Smith’s character on “The Fresh Prince of Bel Air”. These are just a few examples of multiple in-game purchases and downloadable content (DLC) that have generated wild amounts of money in revenue for Epic — despite the fact that the game itself is free to download and play. According to Variety, analysts estimate Fortnite is generating $100 million per month.
In Ribeiro’s lawsuit, he asked the U.S. District Court for the Central District of California to stop Epic from using, showing, or selling the Carlton dance. Ribeiro is in the process of registering the dance under federal copyright law, a requirement to bring a copyright infringement claim. Ribeiro argues he created the dance and made it famous over the years during appearances, including most recently during his participation on ABC’s “Dancing With The Stars” TV show. Ribeiro further claims the dance is “inextricably linked” to his identity, celebrity, and likeness. On the other hand, the creators of The Fresh Prince of Bel Air might argue that they maintain ownership of rights to the dance, as many talent agreements contain results and proceeds provisions that give all rights in content produced on a show to the producers, not the talent. Thus, the battle ensues over when exactly the dance was created and by whom.
But can a dance be protected by copyright? The U.S. Copyright Act protects “original works of authorship fixed in any tangible medium of expression”. 17 U.S.C. § 102. Visual works under the umbrella of protection include choreographic works and choreographed stage performances. Ribeiro argues his dance constitutes a choreographed work subject to copyright protection. And he isn’t the only celebrity to file suit against Epic.
Influencer Russell Horning, known among millennials as “Backpack Kid”, also filed suit against Epic seeking to stop the use of his popular dance, “The Floss”, in Fortnite. Horning is also suing Take-Two Interactive, the maker of the popular video game franchise “NBA 2K” for the use of the dance without his permission. Horning quickly became a social media influencer after his performance with Katy Perry on “Saturday Night Live” in 2017. He boasts 2.3 million Instagram followers and often posts comical videos of himself dancing. He also recently released an EP, making “The Floss” an even more important asset of his entertainment career.
Similarly, rapper 2 Milly filed a copyright infringement lawsuit over the use of his dance, the “Milly Rock”, in Fortnite. Fortnite presents the dance for purchase as the “Swipe It” emote. The Milly Rock dance gained popularity due to 2 Milly’s 2015 song of the same name. His argument parallels those of Ribeiro and Horning, claiming ownership and authorship of the dance, seeking damages for its use without permissions. 2 Milly is seeking punitive and exemplary damages.
All three lawsuits were filed in the U.S. District Court for the Central District of California. Along with copyright claims, the lawsuits include claims for violation of the right of publicity and unfair competition. Horning also brought claims of trademark infringement and false designation of origin. It seems like the combination of these claims could create a Fort-nightmare for Epic Games.
These lawsuits come during a rise of celebrity disputes with video game content creators for the use of their name and likeness without their permission. We’ve covered similar topics here.