By Emily Crane
The Carlton, Floss, Milly Rock. You may recognize these as the names of dances popularized by actor Alfonso Ribeiro, influencer Russell Horning (also known as Backpack Kid), and rapper Terrence Ferguson (also known as 2 Milly), respectively. Recently, however, these dance moves have also become the subject of intellectual property lawsuits against Epic Games, the maker of the popular video game Fortnite.
In Fortnite, players pay real-world money to purchase in-game currency, which they can then use to unlock dances like the Milly Rock (ironically called the “Swipe It” emote) for their characters. As a result, Epic Games made a significant amount of money off the sale of these dances, without compensating the originators or even receiving their consent. The complaints by Ribeiro, Horning, and Ferguson allege that Epic’s unauthorized use infringes on their copyright of the dance moves. Their claim raises two interesting legal questions: (1) Is a simple dance move such as Flossing actually cognizable under U.S. copyright law?, and (2) if not, is there any other legal remedy for these creators?
With regard to the first question, the plaintiffs’ best chance is to argue that these dance moves are copyrightable as choreography. Since these moves are not clearly defined dance creations, such as a ballet, the court will have to decide what the minimum threshold is for a dance to be considered a copyrightable choreographic work. In other words, the plaintiffs will have to show that these dances are not simply components of choreography, but rather stand on their own as complete choreographed works.
When deciding whether or not a dance can be copyrighted, courts look at factors such as the dance’s complexity, creativity, and the circumstances of its creation. Complexity poses an especially large hurdle for these creators, since the dances at issue are all relatively simple movements repeated over and over again. Flossing, for example, involves only a repeated pattern of arm and hip movements, with no footwork to speak of. Another well-settled aspect of U.S. copyright law also threatens the viability of these claims: single dance moves can’t receive copyright protection, since doing so would inhibit the creative expression of dancers and suppress the creation of new works.
However, even if these dance moves are not subject to copyright protection, the dances’ originators may still have hope with the concept of tracing. Ferguson’s lawsuit in particular focuses on the process by which Epic Games actually got the movements of his Milly Rock dance into the game itself. In his petition, he claims that Epic ripped still frames directly from his music videos in order to animate the Swipe It emote. Essentially, Ferguson asserts that Epic Games did what amounts to “tracing” or duplicating frames from his copyright-protected music videos. Under U.S. intellectual property law, tracing a copyrighted image is usually a violation of the creator’s rights, with very limited exceptions. This is especially true where the traced image is then used for the duplicator’s own commercial gain, which is exactly what Ferguson is alleging Epic Games did.
The lawsuits by Ribeiro, Horning, and Ferguson are the first to formally challenge the common video game practice of appropriating popular dances, memes, and even celebrity likenesses for the developers’ monetary gain. The claims’ novelty means resolving them requires the court to wade into largely uncharted territory, and will likely depend heavily on what comes out in discovery. However, one thing is certain, the disposition of these suits will have huge ramifications for the animation, game development, and legal industries.