Are ‘Fortnite Dances’ Legal?

Global gaming phenomenon Fortnite, by Epic Games, has recently been hit with a string of criticisms and lawsuits for stealing their iconic in-game emotes from well-known dances by popular figures including rapper 2 Milly, social media star Russell Horning aka Backpack Kid, and actor Alfonso Ribeiro.

Although free-to-play, Fortnite has made Epic Games worth more than $5bn since its launch in 2017, profiting on selling in-game content such as emotes: defined as animations a player can make their avatar perform, usually a dance move. Fortnite emotes have become popular both in and out of the game, with celebrities and fans being seen performing them in real life in celebration and for viral challenge videos. It is believed that Epic Games creates these emotes by coding movements from the source material of popular media such as viral videos, music videos, and television and films. For this reason, emotes can be perfectly synced with videos of the original creators. It is believed, for example, that the “Ride the Pony” emote was coded, frame-by-frame, from the dance made famous in Psy’s worldwide hit “Gangnam Style”. The emote and dance are identical and, on information and belief, Epic did not obtain Psy’s authorisation to use the dance in Fortnite.

Last week, the mother of Russell Horning and Alfonso Ribeiro filed lawsuits claiming that their work was turned into in-game emotes without their authorisation or consent. Rapper 2 Milly, aka Terrence Ferguson already took legal action against Epic Games last week for ‘stealing’ his 2011 ‘Milly Rock dance’ in their “Swipe It” emote, accusing them of “unauthorised misappropriation”. The lawsuit, filed in December, states that the company have "unfairly profited from exploiting Ferguson’s protected creative expression and likeness" and have "consistently sought to exploit African-American talent in particular in Fortnite by copying their dances and movements.” Alongside the Milly Rock dance, the following examples are provided of allegedly stolen content:

This fiasco began in the summer when Chance The Rapper first criticised the emotes, calling on Epic Games to put the “actual rap songs behind the dances that make so much money as emotes” in order to recompense the “black creatives” that “created and popularised” them.

All three lawsuits are being handled by David L. Hecht of Pierce Bainbridge Beck Price & Hecht LLP and are asking for a ruling blocking Epic Games from using the dance moves as well as legal fees, an award of the money earned from the moves, and unspecified punitive damages.

The problem lies in proving that the accusers are the creators of the dances. Alfonso Ribeiro, for example, made comments in the past that he “stole” his iconic Fresh Prince Of Bel Air moves from old Bruce Springsteen videos. Further to this, issues lie in defining the boundary between a dance and simply a dance move, i.e. whether these moves exist as their own entities rather than within a greater whole. Lastly, to argue that the respective dance moves are worthy of copyright protection, it must be proved that they are sufficiently original from other dances.

The US Copyright Offices states in its official guidance material that “individual movements or dance steps by themselves are not copyrightable ... even if a routine is novel or distinctive”. US copyright law is clear in that it only covers “choreographic works” and not individual steps; even if the lyrics of a song explain how to perform a specific step, protection is not granted to the step itself.

There is still a question of ethics in whether Fortnite should credit a dance move, despite it lacking copyright protection. It has been argued that Fortnite is helping music artists gain exposure to wider audiences. In the absence of a reference, however, fans of the game are unaware of where the dance moves originated from. By continuing to sell these emotes for commercial gain without reference to the original creators, Epic will continue leading the public to erroneously associate the dances with themselves and even strengthen the link between them. Many will even believe that the dances were invented by Epic Games.

As seen by Chance The Rapper and 2 Milly, however, this is not solely about profiting from dance rights. This is part of a larger cycle of cultural appropriation in which the work of black artists is being repurposed and profited from without authorisation or consent.

Furthermore, this is not just about Fortnite. It has been reported that 2 Milly, Horning and Ribeiro have also filed another set of lawsuits against another game published, 2K Sports, regarding their use of dances in the NBA 2K basketball series. The same issue has also happened in the past, for example, in Bungie’s series Destiny which includes purchasable and uncredited dances, such as MC Hammer’s hammer dance and Michael Jackson’s dance moves in Beat It. Regardless of this history, it is the global popularity and phenomenal profitability of Fortnite that has finally brought legal attention to the issue.

The trio of lawsuits currently means little for Fortnite, with a spokesperson for Epic providing no comment on the matter. Injunctions have not been filed to request that Epic stop selling the emotes. Since none of these lawsuits have been scheduled with a trial date yet, it may be years before the results become clear. It is therefore entirely possible that Epic will continue to update Fortnite with new emotes based on popular dance moves without the creators’ consent, attracting more players and creating increased revenue.

Although the future progression of these cases may seem bleak, whatever court decision is eventually made will be likely to change how game developers create emotes and other in-game purchases. To prevent exposing themselves to future lawsuits, companies may begin negotiating permission to depict popular dances in games, and licensing fees may have to be paid, as is the practice with the use of artists’ songs. This will not negate, however, the problems relating to ownership of a dance move.

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