By: Zaq Lacy, Associate Executive Editor
Whether you love it, hate it, or simply do not care, it is a nearly foregone conclusion that you have heard of Fortnite Battle Royale, Epic Game’s free-to-play online massive multiplayer action shooter game,[1] which features a frenetic combination of firefights and construction with highly customizable characters. Released in August of 2017, it has grown to have over 200 million users, a number nearly that of the population of Brazil.[2] Despite being free-to-play for those who do not wish to purchase the standard or deluxe editions,[3] Epic Games raked in a record $2.4 billion dollars in 2018 alone from in-game purchases, mostly from character customization,[4] which can include outfits and celebratory dance moves that cost up to $20 apiece.[5]
It is these dance moves that have been the focus on legal troubles for Epic over the past few months.[6] The issue that has risen is that several of these moves were drawn from various sources of pop culture, from hip-hop artists to YouTube stars to actors, without permission or recompense.[7] This has resulted in several copyright infringement lawsuits being leveled against Epic by rap artist 2 Milly for their use of his dance move “Milly Rock,”[8] rap artist BlockBoy JB for their use of his dance move “The Shoot,”[9] YouTuber Russell Horning (aka “the Backpack Kid”) for their use of his viral dance move “the Floss,”[10] and actor Alfonso Ribeiro (The Fresh Prince of Bel-Air) for their use of his classic dance move “the Carlton.”[11] The complaint for 2 Milly’s lawsuit argues that “Epic has unfairly profited from exploiting [2 Milly’s] protected creative expression and likeness.”[12] Moreover, 2 Milly argues that the “Milly Rock” dance move is his ‘signature,’ and that “everybody would tell you, from here to Alaska, ‘Hey, that’s the Milly Rock.’”[13] Unfortunately, it does not seem like argument will be able to overcome the applicable law set out by Congress.[14]
The Copyright Act provides guidance for the general subject matter that is covered by copyright.[15] Regarding dance, it provides that “pantomimes and choreographic works” are covered,[16] though Congress made it clear that “‘choreographic works’ do not include social dance steps and simple routines.”[17] Further, the U.S. Copyright Office has stated that “the combination of these three dance steps is a simple routine that is not registerable as a choreographic work.”[18]
Despite the clarification, the differences between dance moves and actual choreography are subtle. For example, another YouTuber, choreographer Gabby David, successfully reached a settlement with Epic games[19] after Epic ‘borrowed’ a ten-second section of a dance routine that she posted on YouTube.[20] The reasoning behind the settlement seems to be because, even though the ten second clip only contained a few of the dance moves, not dissimilarly to those involved in the active lawsuits, they were part of a larger portion of choreography developed and recorded by Ms. David.[21] Seemingly, the only difference between the dance moves in question and that of Ms. David were the fact that the aforementioned moves consisted of a limited number of movements that simply repeated while Ms. David’s were part of a larger performance.
With the prevalence of social media and other mediums that are borne of the technology that is now available to nearly every creative person that wishes to share a particular skill, such as sweet dance moves, it is necessary to revisit the statute that was last truly updated in 1976,[22] long before the internet had even been truly invented. From a policy perspective, the antiquity of this law could potentially have a stifling effect on the creativity of countless individuals if they feel they cannot develop a signature move that popular culture recognizes as their own simply because someone else can take it, assimilate it into their own medium, and charge a substantial amount for it. However, barring any unexpected court rulings, until Congress takes fresh look at § 102(a)(4), it seems that Epic’s own move, “the Hustle,” is safe from the threat of lawsuit as long as they do not take their moves from a fully choreographed routine.
[1]See FortniteBattle Royale, Epicgames.com, https://www.epicgames.com/fortnite/en-US/buy-now/battle-royale (last visted Mar. 7, 2019).
[2]See Christopher Palmeri, Fortnite Now Has 200 Million Players, up 60% from the Last Count, Bloomberg LP (Nov, 26, 2018), https://www.bloomberg.com/news/articles/2018-11-26/fortnite-now-has-200-million-players-up-60-from-the-last-count.
[3]SeeFortnite, supra note 1.
[4]See Matt Porter, How Much Money Did Fortnite Make in 2018?,Dextero.com(Jan.16, 2019), https://www.dexerto.com/fortnite/how-much-money-did-fortnite-make-in-2018-285995.
[5]SeeDevon Pendleton & Christopher Palmeri, Fortnite Mania Fuels Epic Growth up to $8.5 Billion, Bloomberg LP(July 24, 2018), https://www.bloomberg.com/news/features/2018-07-24/fortnite-phenomenon-turns-epic-game-developer-into-billionaire.
[6]See Madeline Schrock, Why Fortnight’s Dance Animations Are a Can-of-Worms Copyright Problem, Dancemagazine.com(Dec. 13, 2018), https://www.dancemagazine.com/fortnite-2623060212.html.
[7]See id.
[8]See id.
[9]See id.
[10]SeeSteve Knopper, Why Fortnight Is Accused of Stealing Dance Moves, Rolling Stone(Dec. 19, 2018), https://www.rollingstone.com/music/music-features/fortnite-epic-games-2-milly-stealing-dance-moves-769344/.
[11]See id.
[12]See id.
[13]See supranote 10.
[14]Eric Garrett, ‘Fresh Prince’ Actor’s Lawsuit Over ‘Fortnite’ Dance Gets Surprising Update, Comicbook.com(Feb. 14, 2019), https://comicbook.com/gaming/2019/02/14/fresh-prince-actor-lawsuit-fortnite-dance-surprising-update/.
[15]17 U.S.C. § 102
[16]17 U.S.C. § 102(a)(4)
[17]Circular 52 Copyright Registration of Choreography and Pantomime, U.S. Copyright Office, at 3 https://www.copyright.gov/circs/circ52.pdf (last visted Mar. 7, 2019).
[18]See supranote 14.
[19]See supranote 6.
[20]Gabby J. David, “Bad & Boujee” – Choreography, YouTube.com(Jan. 26, 2019), https://www.youtube.com/watch?v=LcAFlWXlql8.
[21]See supranote 6.
[22]H.R. Rep. No. 94-553, at 2545 (1976).
Image Source: https://fortniteintel.com/youtuber-lawyer-discuccess-epic-games-emote-lawsuits/9203/