A growing cluster of actors, musicians and viral internet stars have Fortnite in their crosshairs. The smash hit third-person shooter is free to play but generates mountains of revenue through in-game microtransactions. Those purchases lure avid Fortnite players to spend real-life cash on virtual cosmetic items, like special character skins (today: a winter skiing set!) and, most importantly, dance moves. Now, Fortnite creator Epic Games faces two new lawsuits over dance moves: one from actor Alfonso Ribeiro, who played Carlton on the TV hit “Fresh Prince of Bel Air” in the 1990s and another from the family of Russell Horning, better known as “Backpack Kid,” who created a viral dance called “the Floss.” Horning’s lawsuit also names 2K Sports, maker of NBA 2K, for that game’s depiction of his dance. Earlier in December, rapper 2 Milly filed a lawsuit against Fortnite maker Epic over the game’s depiction of his dance move, the Milly Rock, which the game calls “Swipe it.” Ribeiro’s lawyer provided TechCrunch with the following statement: It is widely recognized that Mr. Ribeiro’s likeness and intellectual property have been misappropriated by Epic Games in the most popular video game currently in the world, Fortnite. Epic has earned record profits off of downloadable content in the game, including emotes like “Fresh.” Yet Epic has failed to compensate or even ask permission from Mr. Ribeiro for the use of his likeness and iconic intellectual property. Therefore, Mr. Ribeiro is seeking his fair and reasonable share of profits Epic has earned by use of his iconic intellectual property in Fortnite and as a result is requesting through the courts that Epic cease all use of Mr. Ribeiro’s signature dance. Pierce Bainbridge Beck Price & Hecht LLP is also pursuing similar claims against Take-Two Interactive and Visual Concepts, developer of the NBA 2K series of video games, on behalf of Mr. Ribeiro. Fortnite’s in-game dance moves are ubiquitous, both in-game and out — and that’s part of the problem. The game lifted its most popular dance moves from various online viral moments across the internet, TV, movies and music. In most cases the in-game dances are so well-loved because they copy their source material so precisely. While the game lifts these dances move for move, making them widely recognizable, it doesn’t refer to the source material directly and renames the dances with generic nicknames. In Fortnite, the “Tidy” dance is Snoop Dogg’s “Drop It Like It’s Hot” dance, “Jubilation” is Elaine’s dance from Seinfeld, “Pure Salt” (not really a dance, some of these are just emotes) is from the Salt Bae meme, Psy’s Gangnam Style dance and so on. In the case of the Carlton dance, Fortnite gives a small nod to the dance’s origins by naming it “Fresh.” The game draws from a wide pool of source material, but black creators in particular have spoken out about Fortnite’s monetization moves. Black artists have a long history of seeing their work achieve broad mainstream popularity without commercial gain or credit to accompany it. When Chance the Rapper tweeted about Fortnite’s relationship to black artists in July, BlocBoy JB — creator of the dance the game calls “Hype” — endorsed the idea that artists like himself should be paid if Fortnite is making money from their moves. Fortnite’s default in-game emote is a dance that actor Donald Faison performs on the show Scrubs, and Faison has also taken notice. Dear fortnite… I’m flattered? Though part of me thinks I should talk to a lawyer… — Donald Faison (@donald_faison) April 1, 2018 Fortnite’s decision to animate its characters doing popular dance moves in and of itself isn’t new. Overwatch creator and Epic competitor Blizzard includes popular dance emotes in its own multiplayer shooter, and before that in multiplayer RPG World of Warcraft. In Blizzard’s case, the depiction of dance moves, some for sale via lootboxes, isn’t quite as on the nose nor does it mine current internet culture as thoroughly. For example, the Overwatch character Junkrat does a version of the running man dance that looks a lot like a version of the dance by Will Smith’s character on “The Fresh Prince.” That dance was itself popularized by Janet Jackson in her “Rhythm Nation” music video. Other Overwatch dance emotes are drawn from traditional Japanese dance and anime. In Blizzard’s classic game World of Warcraft, the blood elf characters feature dances culled from the movie “Napoleon Dynamite” and Britney Spears music videos. In World of Warcraft’s case, these moves weren’t for sale in-game — the microtransaction model hadn’t yet really taken off during the game’s heyday. Epic Games was likely aware that lifting these dance moves and selling them to gamers might cause a stir among some creators, but by that time it was probably already making too much money to care. Notably, the company faced a high-profile copycat accusation from the creator of PlayerUnknown’s Battlegrounds (PUBG), a battle royale-style game widely understood to have inspired Fortnite’s gameplay. PUBG dropped the lawsuit in June of this year, likely after a substantial settlement. Epic also appears to have quietly paid at least one creator to settle a potential legal threat. Dancer Gabby David, who created the Fortnite dance called the “Electro Shuffle,” appears to have settled with Epic Games around a year ago for the game’s depiction of her choreography, according to forum posts and her Twitter account. Epic Games declined to comment to TechCrunch about the details of the settlement. All three individuals suing Epic Games over Fortnite dances are being represented by intellectual property lawyer David L. Hecht and we’re likely to see more artists and internet stars signing on with Hecht before this is all over. We don’t know Epic’s next move, but as some players have suggested, it would be easy enough for the gamemaker to add some kind of tie-in crediting the creators for their dances. Epic happily partners with entertainment companies and even the NFL for sure to be lucrative in-game promotional crossovers, so it’s tough to say something like this would be out of place in the game.<doc-sep>Epic Games’ Fortnite is the biggest game on the planet right now, but one of its biggest sources of revenue — the ubiquitous dance “emotes” — are now under legal threat from the pop culture icons that claim to have created them. Emotes have become a big business in the game industry. Game studios make new ones every day, and Epic sells its Fortnite emotes for anywhere between $5 and $10, contributing substantially to the hundreds of millions in monthly revenue earned by its battle royale mega-hit. Now, the process behind how those emotes are created and whether they can actually violate the copyright of a work of art is coming under scrutiny. It’s the beginning of a complicated and precedent-setting series of legal cases, dealing with both dance as an art form and the video game industry at large. The biggest question is whether a dance move can be copyrighted at all — a legal matter that has never been fully answered. Beyond that, the court will have to decide whether using a dance move in a video game can be considered appropriating someone’s likeness, in effect using someone else’s identity to sell something. The first case comes from a rapper called 2 Milly, whose real name is Terrance Ferguson. Earlier this year, Epic put 2 Milly’s signature dance, the Milly Rock, into Fortnite as an emote called “Swipe It.” Although Epic never sold the dance directly for money, it included “Swipe It” as part of its season paid subscription service. Ferguson began criticizing Epic for not asking his permission or providing him any compensation. Later, Chance the Rapper blew the complaint up further when he called out Epic for exploiting the art of black performers for its own financial gain. Earlier this month, Ferguson followed through on threats to bring legal action against Epic with a lawsuit. Shortly after, a second lawsuit came from actor Alfonso Ribeiro, best known for portraying Carlton Banks on The Fresh Prince of Bel-Air. His signature dance, known colloquially as “The Carlton,” was turned into a Fortnite emote called “Fresh.” A third lawsuit came from Russell Horning, otherwise known as “Backpack Kid,” who’s popularization of the floss dance led to the move becoming an early Fortnite emote of the same name roughly a year ago. (Horning, though he now has a sizeable social media following and aspiring rap career, is just 17 years old, so his mother is suing on his behalf.) All three are represented by the same law firm, Pierce Bainbridge Beck Price & Hecht LLP, and are suing on roughly the same grounds. The complaints allege copyright infringement and violations of the right of publicity — the personal rights that govern how an individual can control and profit off the use of their own likeness, name, and other identifiable traits. Although the two claims are separate, winning either one could cost Epic a substantial amount in damages. More significantly, it would require licensing deals for the dance moves used as the basis of emotes, resulting in significant changes to Fortnite itself. Epic declined to be interviewed for this story, saying it does not comment on ongoing litigation. SO YOU THINK YOU CAN COPYRIGHT A DANCE In some ways, Ferguson’s dance is exactly the kind of thing intellectual property law usually protects. If Epic played Ferguson’s song, “Milly Rock x 2 Milly,” when the Swipe It emote was engaged, it would be an obvious infringement of Ferguson’s copyright in the song. (In fact, Epic creates all of its own music for emotes in-house, to avoid just that issue.) If Epic turned Ferguson into a playable Fortnite character without his permission, it would be a clear violation of his right of publicity. But the claims are more complicated when it comes to dances. Epic took a dance Ferguson popularized, turned into a visual asset with motion graphics, and then made it into a reward for playing a lot of Fortnite. So the first question would be whether a dance move can be protected by copyright at all. “There’s no definitive case law determining this.” Most dance moves do not constitute copyrightable works because they do not, under current copyright law, rise to the level of choreography. Deciding if a work of dance is protectible choreography is a subjective evaluation typically based on length and prestige. Individual dance moves — like the worm, the macarena, or the moonwalk — have historically been left out. The Copyright Office’s own guidance is clear: “individual movements or dance steps by themselves are not copyrightable,” it says, specifically calling out the waltz and “the hustle step.” (The Copyright Office is not super up on trends,) But the matter has never actually been argued in court, explains Merlyne Jean-Louis, an entertainment lawyer who also happens to be a former dancer. “We don’t know the answer to whether a dance move can be copyrighted,” she says. “There’s no definitive case law determining this.” When the Copyright Act of 1976 was passed, it finally established rules around choreography, with some limited fair use cases around criticism and dance education. Strangely enough, it covered even pantomime, but not an individual dance move as we’ve culturally come to understand it in the ensuing decades. There may be a good reason for that. Individual dance steps, like individual words and musical notes, can often form the foundation of other pieces of art. If an artist could claim a copyright in an individual step, it may make free expression with the human body prohibitively difficult without legal risk. It also opens up all sorts of thorny edge cases around street performance and other public forms of dance, as well as the actions of countless people on social media, YouTube, and other online video channels. If the moonwalk were owned by the estate of Michael Jackson, it could maybe then sue a high school impersonator for doing it on video and then publishing it to YouTube. The drafters of the Copyright Act never foresaw the emergence of internet memes<doc-sep>The mother of the young boy affectionately known as Orange Shirt Kid, whose awkward “Orange Justice” dance won over so many “Fortnite” players they convinced Epic Games to put it into the game, is now suing the studio over its inclusion. While this is just the latest in a strong of plaintiff’s going after Epic Games for inclusion of their dance moves in “Fortnite,” what makes this particular case odd is that the “Orange Shirt Kid” submitted the dance to Epic Game’s BoogieDown contest to have the dance included in the game. When he didn’t make the cut a mass of players took to Change.Org to petition Epic to include him in the game. Eventually, much to the delight of the kid himself, they got their way. In the rules for the contest, Epic spells out that players won’t be paid for the use of selected dance moves and also notes that it has the right to use the dance for publicity for the game. The dance was also never sold, but instead given away as part of the free battle pass. So it had to be unlocked by playing, but not through a purchase. In the lawsuit, filed last week, there’s no mention of the BoogieDown contest, nor of the tweets — now deleted — from Orange Shirt Kid in which he submits his dance moves or celebrates Epic’s post-contest decision to add him to the game. Instead, the child’s mother, Rachel McCumbers, says that Orange Shirt Kid “exploded in popularity in or around early 2018, after he made a video of himself performing the Random and the accompany Catchphrase.” After the dance, which the lawsuit says is called “the Random,” gained popularity, Fortnite players started a campaign to encourage Epic Games to incorporate the Random in “Fortnite,” according to the suit. It also notes that the child was the victim of “extreme cyberbullying” and that he was forced to deactivate both his Instagram and YouTube accounts. The suit also notes that now when people perform this dance they don’t call it the Random, but rather refer to it by the name used in Fortnite: “Orange Justice.” McCumbers is seeking unspecified damages. Pierce Bainbridge Beck Price & Hecht LLP, which filed this lawsuit, is also the law firm behind complaints filed against Epic Games by Brooklyn rapper 2 Milly, actor Alfonso Ribeiro, and Instagram star Backpack Kid over the use of their dance moves in the game. For a deeper dive into the issues surrounding the “Fortnite” dance lawsuits, make sure to read our explainer.<doc-sep>A hot potato: Yet again, Epic Games is being sued for using a dance in Fornite, apparently without its inventor’s permission. This time, the plaintiff is the mother of the young boy known as Orange Shirt Kid, whose 'The Random' dance went on to become 'Orange Justice' in the game after it was submitted to the Fortnite BoogieDown contest. Back in April last year, Epic Games held a contest that asked people to share recordings of their dances, the best of which would end up as a Fortnite emote. One of the entries came from Orange Shirt Kid, and while it didn’t win the competition, his enthusiastic moves struck a chord with fans. A petition was launched, and the dance made its way into the game. Now, however, the boy’s Mom, Rachel McCumbers, has decided to join The Fresh Prince’s Alfonso Ribeiro, rapper 2 Milly, and Backpack Kid in suing the game maker for “unauthorized misappropriation" of a dance. As with all the other cases, McCumbers is being represented by the law firm of Pierce Bainbridge Beck Price & Hecht LLP. "Defendants did not credit Orange Shirt Kid nor seek his consent to use, display, reproduce, sell or create a derivative work based upon Orange Shirt Kid's Random dance or likeness in Fortnite," states the lawsuit. The suit adds that the inclusion of the dance saw the boy experience cyberbullying to such an extent that he was forced to deactivate his Instagram and YouTube accounts. What’s different about this case is that Orange Shirt Kid entered a competition that stated entrants would be handing Epic the rights to their dances. The T&Cs also explained that participants wouldn’t be paid, but there’s no mention of the competition in the lawsuit. When Orange Justice appeared in Fortnite along with the "It's also a great exercise move” catchphrase, OSK celebrated in some now-deleted tweets. As noted by PC Gamer, here’s a fairly amazing part of the lawsuit: As one example, a USA Today article featured First Lady Michelle Obama performing what is clearly the Random dance at Children’s Hospital Colorado in December 2018. Instead of referring to the dance as the Random, the First Lady was quoted as saying “Santa doin’ Orange Justice!” which demonstrates that even she was misled about the nature of the dance she was performing. Orange Shirt Kid Versus Epi... by on Scribd<doc-sep>
A storm is coming for Fortnite. No, not the blue wave that keeps forcing you forward—a legal storm. Earlier this month, a trio of creators sued Fortnite’s publisher, Epic Games, over its use of the dance moves they created, which gamers can perform (and purchase) in-game with the push of a button. Given Fortnite’s success, any lawsuit that could disrupt its ability to turn the game’s popularity into cash is a huge problem for Epic. That said, the lawsuit also has wider implication for other developers that potentially charge for pop culture dances or “emotes” in their games, as well as the wider cultural landscape—TV shows, movies, etc. Everything’s happening pretty fast, and there’s a lot of legal jargon getting thrown around these cases, so it might be tough to understand the whole story. Let’s go through the basics, so you know what’s what and can follow these artists’ cases as the legal cases start to heat up. Who’s suing Epic? Three artists have filed copyright lawsuits against Epic, claiming they deserve compensation for the use of dances Epic created in Fortnite without their permission (or any kind of attribution). This has led many players to associate the dances with Fortnite instead of the dances’ originators, and has earned the dancers a whopping zero dollars from the sales Epic makes of the dancer’s original creations. The first suit was filed by rap artist 2 Milly for using the dance he created to go with his song, “Milly Rock” without permission or credit. Here’s the song’s music video, which features the dance: And here’s the “Swipe it” emote in Fortnite: The second lawsuit, which seems to have gotten the most attention so far, is from Fresh Prince of Bel-Air actor Alfonso Ribeiro. Everyone knows Tom Jones-loving “Carlton” dance, otherwise known as “Fresh” within Fortnite: Lastly, Russell Horning—also known as “The Backpack Kid”—has filed a third lawsuit over the use of his signature dance move, “flossing,” which Fortnite simply calls the “Floss.” (Technically, Anita Redd, Horning’s mother, filed the lawsuit on his behalf because he’s a minor.) All three lawsuits request that Epic remove the emotes that correspond to the dances from the game, presumably until they pay a licensing fee, as well as damages. If you’d like to read the complete claims for all three lawsuits, Variety has published the full filing paperwork. It’s also worth pointing out that this is not just about Fortnite. According to TMZ, 2 Milly, Ribeiro and Horning have filed a second set of lawsuits against a second game publisher, 2K Sports, over the use of their dances in its NBA 2K basketball game series. Why is this happening now? A trio of lawsuits at once may seem sudden, but a number of artists have publicly admonished Fortnite for using their dances without permission over the past six months. In July, Chance the Rapper published a series of tweets suggesting that Epic should attribute Fortnite’s emotes to the dances they’re based on and, when applicable, license the songs connected to them. Another artist, BlocBoy JB, tweeted shortly after that he would like to receive royalties from games that use the signature dance from his song “Shoot,” which Fortnite fans may recognize as the “Hype” dance emote. In November, Scrubs actor Donald Faison said that Epic “jacked” his “Poison” dance from the show to make Fortnite’s default victory dance. All of this, as Chance points out in his original tweet thread, is also part of a larger cycle of cultural appropriation. Four of the five artists we’ve mentioned whose dances have been put into Fortnite without permission are black. Corporate entities have found ways to repurpose and profit off creative works of black artists for a long, long time. To put it another way: Artists have been pissed for a while. It was just a matter of time before someone decided to make things official and file a lawsuit. Do they have a case? Epic has told multiple outlets it does not plan to comment publicly on the suits while they’re ongoing, but it seems unlikely that they will claim otherwise. Instead, Epic may try to claim that the dances are not distinctive enough to be worthy of copyright protection. It is possible to copyright dance choreography, but the U.S. Copyright office specifically states that “commonplace movement and gestures” cannot be copyrighted. That includes specific short dances like “the YMCA,” because it’s just people making shapes with their arms.