The Fortnite lawsuits: why performers stand a fighting chance to beat the game

"Floss" Emote in action

Last month, the company Epic Games was sued by three celebrities for reproducing in their video game what the claimants argue to be their dance moves. Since then, the question of copyright in dance has been the subject of much attention. Whilst most experts have cast their doubts on the success of the Fortnite cases (here), this Kat is inclined to think that the three claimants may still have a shot (considering past US precedents). 

A little bit of context about Fortnite

It all starts with a very popular game called Fortnite designed and produced by the company Epic Games. Fortnite is a collaborative video game whose aim is rather simple: escape to a desert island or win battles. Since its release in 2007, Fortnite has been, well, an epic success.

This success can be attributed, in part, to the price of the game: it is free to play. The game producers generate money by selling players the option of improving their character’s appearance by purchasing outfits or accessories in the game’s store. These add-ons go by the name of ‘skins’ in Fortnite parlance.

These pay-as-you-play extras can also come in the form of dance moves that a character will be able to perform on demand during the game. These optional dance moves are called ‘emotes’, and retail for $8 each (approx. £6). With players spending between $50 (approx. £31) and $80 (approx. £62) on average per year on these add-ons, there is definitely money to be made from virtual dancing.

But for such emotes to be commercially attractive, they would need to reference famous and distinctive moves. Emotes would have to be a little ‘funkier’ or more fashionable than banal gestures, such as a ‘high five’. This is probably why the designers of Fortnite have started selling emotes that imitate or invoke trendy dance routines.

The claims of copyright infringement

This brings us to the three claims of copyright infringement filed against Epic Games, before the District Court of California (US) (here).

Terrence Ferguson is a rapper better known by his fans as ‘2 Milly’. Ferguson claims to have created a simple and short dance routine, which we will call the ‘Milly Rock’ (see here and here for performances of the ‘Milly Rock’; for the claim see here). Ferguson claims that Fortnite reproduced his choreography under an ‘emote’ called ‘Swipe it’ (see here for the emote in action).

The second infringement claim was filed by actor Alfonso Ribeiro (here). Ribeiro is best-known for his role in the 1990s series “The Fresh Prince of Bel Air,” in which he played the character of Carlton. The character of Carlton is famous for performing a quirky and distinctive dance, which ended up bearing his name (i.e. “the Carlton dance”, here). More recently, Ribeiro has performed this dance routine during his appearance on the show Dancing with the Stars (here) and on the Graham Norton Show (here).

Ribeiro alleges that Fortnite reproduced his choreography in an ‘emote’ called ‘Fresh’ (see here for the emote in action). The name itself appears to reference the series and Fortnite’s website actually acknowledges that their emote was indeed inspired by the Carlton Dance (here).

Left: Fortnite emote,
Right: Ribeiro performing on Dancing with the Starts

The third claimant is Russel Horning, better known as the Back Pack Kid. Horning was not really known to the public until his performance of a dance routine called the ‘Floss dance’, which made the buzz shortly after it aired on live TV (see here and here for performances of the Floss Dance). Horning also filed for infringement, after the emote ‘Floss’ appeared on Fortnite (see here for the emote in action). 

The strength of the claims

Horning performing the "Floss dance"

Choreographic works have been recognized since 1976 as a stand-alone category of protected copyright work under US law (17 U.S. Code § 102, see here and here). Like any other authorial work, a choreographic work must be original and fixed for copyright to subsist. The fixation requirement can easily be met by filming the dance or by writing it down using dance notations. Prima facie, all three claimants hold a reasonable claim at securing copyright protection as far as these requirements are concerned. But…

Authorship and Ownership?

To bring proceedings for infringement, one needs to own the rights in the work. In this regard, Ribeiro’s claim may be the weakest of the three because his dance routine was created during the production of “The Fresh Prince of Bel Air” series. It may be that his performance of the “Carlton Dance” is the result of instructions he would have received from the set director or the producer. If this is the case, the “Carlton Dance” would be seen as the director’s or the producer’s creation rather than that of Ribeiro’s (applying the “master mind” test outlined in Aalmuhammed v Lee, 202 F. 3d 1227 (2000) 1233).

Additionally, it may have been a contractual condition of Ribeiro’s employment by the producers of the series that all and any intellectual property he might generate during his performance as ‘Carlton’ be assigned to them. Even in the absence of such a contractual arrangement, the doctrine of work-for-hire may still apply. According to this doctrine, any work created for the purpose and in the course of employment would be owned by the employer not the employee (US Title 17 Section 101, here).

Finally, Ribeiro himself explained in an interview that he was inspired by earlier dance performances by Eddy Murphey (here), Courtney Cox and Bruce Springsteen (here) in coming up with the Carlton Dance (here). This may undercut his claim to authorship in the work that he registered, insofar as the choreography may be viewed by a court as either derivative or simply unoriginal to receive copyright protection.

But…Building blocks?

We now come to the main weakness affecting all three claims: the very short length of the dance routines in dispute. This will become a problem in comparing the choreographies registered by the claimants to their corresponding emotes to gauge their similarity according to copyright law.

A court may rely on a range of tests or means to compare the claimant’s work to its alleged copy. This assessment will invariably include quantitative and qualitative comparisons with the creative works at hand. This entails asking: what and how much of the claimant’s work was borrowed [= quantitative assessment]; and, within what is deemed to have been borrowed from the claimant’s work, what is protected by copyright [= qualitative assessment]?

Addressing the first step is fairly straightforward considering that the claimant’s works were reproduced in full in the video game. The emotes are identical copies of the choreographic works. This brings us to the second step of the test: what has been reproduced? Upon closer look, the claimant’s choreographies seem to feature only two or three steps, depending upon how the routines are dissected. Further, taken individually, these individual steps can be described as common place or banal. This observation may lead a court to conclude that, although Epic Games reproduced the entirety of each dance routine, the latter do not attract copyright protection in the first place because ruling otherwise may extend copyright to single moves.

The argument for denying infringement is based on the settled principle that short copyright works or short excerpts of copyright works, such as steps in a choreography or words in a poem, cannot attract copyright protection on their own. The rationale behind this limitation is to ensure that the “building blocks” of creative expression are not unduly appropriated via copyright. 

But…there is a fighting chance!

That said, the judicial interpretation of similarity in the context of infringement is notoriously unpredictable. This is where the claimant’s fighting chance of winning their respective cases rests.

First, courts have developed different variations on the similarity test outlined above, which may each yield a different result as to infringement, including one that is favourable to their interest. For instance, capturing the “total concept and feel” of a dance by reproducing what may otherwise be perceived as basic or uncreative elements may nevertheless suffice to rule for infringement (see Roth Greeting Cards v. United Card Company, 429 F. 2d 1106 - Court of Appeals, 9th Circuit 1970). In Roth Greeting Cards, the Court decided that the defendant had infringed the copyright covering the greeting cards of the claimant because “the characters depicted in the art work, the mood they portrayed, the combination of art work conveying a particular mood with a particular message, and the arrangement of the words on the greeting card”, were substantially similar (at 1110). Applying this this approach to the Fortnite cases, it is not totally unreasonable to conclude that the emotes reproduce the “total concept and feel” of the three choreographies in dispute.

Second, the outcome of the test chosen by a court will also depend on how the choreographies are dissected by the court, and whether they will be perceived as more sophisticated than three basic steps strung together.

It should be noted that there is little precedent for copyright infringement in choreographic works in the US. This gives the claimants a more open field to argue that the distinct nature of their respective choreographic works, combined with the ease by which they may be appropriated by game designers, justifies granting copyright protection to very short works of dance and/or sanctioning very short reproductions of these works.

In fact, a decision by the Second Circuit Court of Appeal, known as the Nutcracker case, may lend support to the three celebrities’ claims in this regard ( Horgan v. Macmillan, Inc., 789 F. 2d 157 - Court of Appeals, 2nd Circuit 1986). In the Nutcracker case, the Court ruled that still photographs taken during the performance of a ballet can infringe the copyright held in that ballet (at 163).

The Court ruled that:

“A snapshot of a single moment in a dance sequence may communicate a great deal. It may, for example, capture a gesture, the composition of dancers' bodies or the placement of dancers on the stage. […] A photograph may also convey to the viewer's imagination the moments before and after the split second recorded.” (at 163, per Chief Justice Feinberg)

This approach notes the distinctive nature of choreography and suggests, accordingly, that extremely short reproductions of a choreographic work, capturing what in effect is a single step performed by one or more dancers, might suffice to infringe copyright. 

Considering the above, this Kat is inclined to think that the performers have a fighting chance to win their case and chart new territory for the copyright protection of dance.