Creators Of Dance Moves Suing Creators Of Fortnite Over Copyright Infringement That Can't Possibly Have Happened

from the three people, one bad idea, one all too willing legal firm dept

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 it 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.







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Comments on “Creators Of Dance Moves Suing Creators Of Fortnite Over Copyright Infringement That Can't Possibly Have Happened”

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54 Comments
Igualmente69says:

One thing that is bothering me about this, after reading about it initially a few weeks ago, is that unless Alfonso Ribiero had in his contract for Fresh Prince that he retained rights to any dance he created working on the show, shouldn’t the dance, even if it could be copyrighted, be owned by the producers of the show, and not him?

Gregory M Dwyersays:

Re: Carlton dance

What I find even more amusing is that Ribiero admitted taking the first part (the arms swinging) from Eddie Murphy and Bruce Springsteen. Given that there are only two steps in the Fortnite dance, does he really think that his one addition is copyrightable? And is he gonna give half to Murphy and Springsteen?

Anonymoussays:

Most of these people suing or complaining are too young to remember when this happened back in 2004/05 with WOW and their dances they copied from pop culture. I see so many comments on gaming sites like YEA SCREW YOU EPIC STEALING FROM THESE POOR ARTISTS.

Most of these guys didnt even make the dance anyway, it was just in their music video. Some choreographer came up with it.

Dumb.

Anonymoussays:

Re: wow VS fortnite

The difference here is that WoW doesn’t charge real money for dances. The dances are a very, very minor part of the overall game. Fortnite charges real money for each dance and the dances are super important to the culture of the game. Since they charge per dance emote there’s a very direct correlation to value for the dance. It’s not bought as part of the whole game.

cpt kangarooskisays:

Although I agree that there’s no infringement here, I would disagree with some of the points made in the article.

A choreographic work is copyrighted upon fixation (such as by videotaping it), just like anything else. Registering a work is not the same as copyrighting a work.

But the rule has been that choreography is dramatic — it tells a story. Mere dances for fun don’t do this, and aren’t protectable.

Also re trademark, you might want to check out White v. Samsung, 971 F.2d 1395 (9th Cir. 1992) for the lengths the 9th Circuit will go to in protecting publicity rights. If one of these dancers is known for little more than the dance, they might just be able to pull something off here. The key will be whether the dance is being appropriated or the dancer’s identity. Using the dance for video game players is a good move here, IMO.

John85851says:

Re:

If choreography is a dramatic work, then who gets the copyright? In photography, the photographer usually gets the copyright on any photos taken. (Let’s not get into the monkey selfie photo.) So in this case, wouldn’t the choreographer own the copyright since he or she came up with the dance?
And then like the article mentions, what happens if the dance is created as a “for hire” work, such as for a character on a TV show? Does the studio own the copyright to the dance?

In other words, Alfonso Ribiero’s case should get thrown out of court for lack of standing since there’s no way he can own the copyright to the dance. Sure, he might be associated with the dance, but that’s not a copyright issue.

cpt kangarooskisays:

Re: Re:

Standard rules for vesting apply. The one thing to watch for is whether a work was created individually and then used by an employer as opposed to being created in the course of employment. See the CCNV case for the usual factors; we may lack facts to know how it will shake out this early on.

Also while photographers usually get copyrights in photographs, the key is who is responsible for the creative choices that go into the photo. Composition, lighting, choice of subject, etc. A photographer can also just be a hired hand with no input, who is being paid to shut up and operate the camera and nothing more. So I?m wary of rules of thumb in that context.

Anonymoussays:

Re:

Yes, but that’s generally under trademark grounds, not copyright. I can start my own hamburger joint, but if I put a golden M on the side of the building you can bet your ass McDonald’s is going to send me a cease & desist and take me to court for infringing on their trademark once their lawyers catch wind of my little enterprise. However, they can’t stop me from selling largely the same things they do. That’s why there are several fast food burger chains both nationwide and regionally/locally that have pretty much interchangeable menus.

Anonymoussays:

Re:

I think it is the presentation that can be subject of copyright, not the ingredients. For example, the copyright upon a cookbook only applies to the presentation and not the text form list of ingredients, cooking temp & time, etc.

Reminds me of a story some time ago where some restaurant was trying to claim an R&D write off for the redesign of their menus.

Petersays:

Not as far-fetched as you make it sound, but ...

… where did Rapper 2 Milly get the absurd idea that copyright was about protecting the small people’s interest?

Of course dance moves can be copyrighted, just like APIs, tiny sound bytes of larger songs, or words used in newspaper headlines. Those things may have been laughed out of the courts a few years ago. By now, corporate lobbyists and specialized legal teams have convinced politicians and courts that the only limit to copyright is the rightsholder’s imagination. Which appears to expand faster than the universe.

The way copyright works, though, would be that EPIC might somehow, accidentally, mix the stolen moves into new ones. And then charge Rapper 2 Milly for performing them on stage. Not other way round!

Anonymoussays:

Copyright should not be allowed upon dance moves, the way one walks, the way one talks … any physical movements or noises that a person might do.

It is ridiculous that people would need to be aware of and avoid infringement of the many thousands of things that would end up being copyright.

Yes, the NFL Super Bowl silliness is a good example of how dumb this is. You have to pay me if you want to use two certain words in a particular order.

James Burkhardtsays:

Re:

It in fact, is not. You can only get copyright on choreography, which most scholars to this point have assumed refers to far longer works often with a narrative structure, as the courts noted that individual moves, or even short strings of moves, aren’t copyrightable. For intance, when Alfonso Ribeiro did a dance on Dancing with the Stars that included the ‘Carlton Dance’, he had to incorporate far more moves to build a solid 3 minute routine. That dance might be eligible for copyright protection under my read of the core statutes. It is very questionable if the ‘carlton dance’ does.

Anonymous Anonymous Cowardsays:

Re:

Wouldn’t that depend upon the Copyright Office actually looking for prior art? If they are controlled by the same rules as the Patent Office that might not be possible. If they can only review already copyrighted works, they might never see the YouTube videos.

Contrary to that point, didn’t they make a rule that things are copyrighted when they are first expressed? As in both your post, and now mine are copyrighted automagically, without registration. Is that different for non-written media?

Anonymoussays:

Its hard to copyright dance move,s for a reason,
imagine if the film companys owned every dance or sequence of steps
featured in films back to 1950 ,it would make it very hard to create any new dances without getting sued .
We have seen in the area of software patents
most countrys have banned them as they are a tax on small companys and a license for patent trolls
to make money.
Games have featured dance emotes for years .
before fortnite was released .

Rico R.says:

On the copyrightability of dances...

It might sound crazy at first, but hear me out: Can dances even be copyrighted? At first glance, it may seem like yes, looking at Title 17 U.S.C., Section 102. Subsection (a)(4) states that pantomimes and choreographic works are original works of authorship that can be eligible for copyright protection.

However, in order for copyright to take effect, section 102(a) states that the work must be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Obviously, written instructions on how to perform the dance or a video of such a performance can be copyrighted and registered accordingly, but the underlying dance is another question.

Given written instructions, can the dance itself be “perceived, reproduced, or otherwise communicated” directly? No. Can the dance itself be “perceived, reproduced, or otherwise communicated” with the aid of a machine or device? I suppose you could argue that your body is the “machine” doing the dance, but if judges went as far as to say that monkeys can’t own copyrights because they’re not human (therefore not a person), I wouldn’t be surprised if copyright law, as it is currently written, is ruled to not include choreographic works because humans aren’t technically machines or devices, and therefore can’t be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device.

I suppose you could then argue that when you do the dance, you’re communicating something directly, but how do you fix that in a tangible medium of expression? The recording of the performance is not necessarily the same thing as the performance itself. Just a random thought I had on the copyrightability of dances.

Paul Brinkersays:

Re: On the copyrightability of dances...

Dance Moves Vs Swan Lake.

As far as the copyright laws care, Swan Lake is copyrightable. However words (simple movements) are not copyrightable. The “Dances” that artists are trying to claim are nothing more then 1 or 2 words, taken out of context of the original person to make them popular, they are by no means Swan Lake, nor are they even Michael Jackson’s Smooth Criminal routine.

If I can do the Moon Walk, or the iconic 45-degree lean, outside of doing the entire routine then I can do Flossing or the “white guy dance” without payment as well. To say otherwise would open up night clubs to “Illegal Dancing”.

Anonymoussays:

In the future, you will need a license to dance.

There will be collection agencies similar to BMI & Asscap but for dance moves. Cover at the door of music venues will increase quite a bit because not only do they have to pay just in case the band plays some song on a list but they also have to pay just in case one of their patrons does some copyrighted dance moves.

Foot Loose Redux

Anonymous Anonymous Cowardsays:

Re:

Isn’t the question ‘can you actually do those dance moves?’ yourself, not with code and an avatar? Keep practicing, we are looking forward to you posting your videos of YOU doing these dance moves…correctly. All three, or it doesn’t count. Oh, and don’t worry about violating any copyright, as it appears that it does not actually exist…yet, so hurry.

/s

M. C. Reeussays:

2 Milly

Won’t we soon discover that 2 Milly is actually German twins (real names Rob and Fab Morvan-Pilatus) who alternate their appearances so we never see them together, and who are actually wearing special exoskeletons remotely software-controlled by their choreographers, Jodie and Linda Balboa, Don Jarvis and Bard “Werewolf” Howl?

That Anonymous Cowardsays:

“putting Ribeiro right back where he was three days before this lawsuit was filed”
Incorrect, he’ll be out several thousand in costs & fees, and learn that sometimes the lawyer who answers your call to I should sue with you betcha isn’t the best pick.

This is permission culture at its finest.
The law gives you no rights in this area because to do so would lead to the end of the world as we all were in litigation for having moved like someone moved that one time.

You have no right to demand to get paid, forever, for anything.
You don’t have the right to demand no one else do it without paying you.

You did a shitty dance, never tried to cash in on it, until someone found a way to make a buck with it. They put the time & effort into building upon your creation (which is how its supposed to work you jackasses) to create something new… an expression in a videogame.

I hope the judge slaps you all down & suggests ethics charges against the law firm, a copyright case brought over something clearly uncopyrightable with no issued copyrights & filed in some cases days before the lawsuit with no hope of being issued. These lawyers are ripping off their clients & wasting judicial resources trying to create a new area of law & income for people who apparently aren’t that relevant beyond being 1 hit pop culture wonders.

cradesays:

Re:

“The law gives you no rights in this area because to do so would lead to the end of the world as we all were in litigation for having moved like someone moved that one time.”

To be fair.. what you describe is pretty much how copyright on music works today. The only reason we aren’t all in litigation for having sung songs or made sounds like someone did before is because the logistics are difficult

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