Rappers Terrence “2 Milly” Ferguson and James “BlocBoy JB” Baker, influencer Russell “Backpack Kid” Horning, and actor Alfonso Ribeiro (best known for his role as “Carlton Banks” in the sitcom “The Fresh Prince of Bel-Air”) have dismissed their claims against Epic Games for allegedly infringing their signature dance moves in the wildly popular videogame “Fortnite.”
“Fortnite” is an animated battle royale where fictional characters perform a victory dance after defeating an opponent. “Pay or Play” previously reported on these cases in December, and it appeared many months would pass before the final curtain call. Yet none of the cases got beyond the pleading stage.
The dismissals came about a month after the U.S. Copyright Office released its decision not to register Ribeiro’s dance routine. According to the letter, although the Copyright Act does protect choreographic works, Robeiro’s moves constituted a “simple dance routine,” and “social dances, simple routines, and other uncopyrightable movements are not ‘choreographic works’ under the Act.”
In February, Epic moved to dismiss the plaintiffs’ claims under California’s anti-SLAPP statute and argued all of the moves alleged to be infringed were “simple routines” consisting of basic body movements. Epic noted that placing these moves, such as an arm swing, side step, or head dip, outside the public domain would “cause every person who performs the step on television, at a wedding, or in any other public place to be susceptible to a copyright infringement claim.” Regardless, Epic argued that the “Fortnite” version of the dances were not substantially similar to the plaintiffs’ performances in that the moves varied, were displayed at different tempos, and were depicted in a transformative context (i.e., celebrating victory on the battlefield vs. acting in a sitcom or music video, or performing on live television). Additionally, Epic contended plaintiffs’ right of publicity claims were meritless because the game’s avatars have no resemblance to the plaintiffs and the value of the game does not principally derive from the plaintiffs’ fame.
All of the dismissals came before Epic’s anti-SLAPP motion could be decided and were without prejudice, which indicates these suits could be revived at some point. But for now, it appears Epic will have the last dance.