Microsoft Removes Carlton, Floss Dances From Forza Horizon 4

Gif: Icedragon343, YouTube

The Carlton and Floss dance emotes are no longer available in Forza Horizon 4 following changes made to the game as part of today’s big Series 5 update. Although publisher Microsoft won’t say why it removed the emotes, both dances are the subjects of lawsuits against publisher Epic Games for using them in the mega-popular game Fortnite.

While the player controls cars in Forza Horizon 4 and not people, driver avatars sometimes appear on screen, at which point they can perform dance moves of the player’s choice. The game’s Carlton emote lets players’ avatars perform actor Alfonso Ribeiro’s dance from The Fresh Prince while the Floss emote lets them perform the dance originally performed by Instagram personality Russell Horning, better known as Backpack Kid, on Saturday Night Live back in 2017. Both have now been taken out of the game.

When reached for comment, a spokesperson for Microsoft would not elaborate on why the emotes were removed. In a statement, the spokesperson said, “Forza Horizon 4 features a large portfolio of content and is continuously updated.” The emotes have been in the game since it released in October 2018. Other emotes based on popular dances, like one that imitates Drake’s Hotline Bling dance, are still in the game.

Their removal today comes as lawsuits pile up against Epic Games for some of the emotes included in its game. In December 2018, rapper 2 Milly filed a lawsuit against the company for Fortnite’s use of his Milly Rock dance, re-named in the game “Swipe It.” Later that month, Ribeiro and Horning joined in with their own lawsuits. Ribeiro is also suing 2K, the company behind the NBA 2K games, for using the Carlton dance as an emote in the past.

The latest person to file a lawsuit over emotes based on real-life dances is Rachel McCumbers, the mother of the boy whose dance was added to Fortnite after he submitted it as part of Epic Games’ BoogieDown contest. As Variety reports, McCumbers’ son, known in the Fortnite world as “Orange Shirt Kid,” lobbied the company and fans to try and get his dance added to the game, which Epic Games eventually ended up doing, titling it “Orange Justice.” The rules of the contest stated that no one who participated would be paid, but that hasn’t stopped McCumbers from suing the company for unspecified damages. 


Comments

    They should remove all emotes and skins from the game. They add nothing and just serve to inflate the loot pool for wheelspins.

      They add a personal touch a lot of people are looking for, just to stand out from the crowd. Its up to the player to determine how important that is to them. Personally, I cant see much point either, but there have been games where I've chased cosmetics just for the look. Wouldn't pay real cash for them though.

      If I can get them for free though, it doesn't bother me. Its just another part of the game. If it becomes too grindy because of it, I end up moving on to another game.

    I had no idea this had dance moves in it. It's a bloody racing game and they decide to put in dance moves??? WTF. So glad I steered well away from this. Horizon viewpoint is very dim.

    Its a bloody dance move for crying out loud, its not like they invested a fortune in creating the dance routine, they should have some sense of pride that someone liked them enough to reproduce it in a popular game, instead all they're seeing are dollar signs. "Imitation is the sincerest form of flattery". Whats next, are iD going to sue 3D Realms for including a cameo for Doom in Duke 3D? Crystal Dynamics may as well jump on that boat as there was a Tomb Raider cameo in Blood. Its cases like these that diminish the value of any court case that has a legitimate claim to intellectual property.

      It doesn't matter if someone spent large amounts of money creating a thing (song, poem, painting, dance, photograph), doesn't mean they should just be happy to let large corporations use their work without compensation. Also, It's not 'imitation' if it's an exact representation of the work. The logical conclusion from your argument is that choreographers should not be eligible for royalties because their art is not meaningful enough.

        They aren't exact representations though. They're computer generated images, not real life recreations. As trivial a difference as that sounds, its significant. If they took Carlton's video and played that as the emote theres a copyright claim to be had but they didn't, they just mimic'd it. Very effectively.

        One of the tests of copyright infringement is damages - did the event reduce the income of the artists. Not, as a lot of people think, did it prevent them from increasing income.

        You also have fair use. The moves in question are part of a bigger product, and not copyrighted in their individual portion. A full episode of Fresh Prince is copyrighted, not 10 seconds of it. 2 Milly's entire video clip is copyrighted, not 5 seconds being recreated elsewhere.

        This is a money grab by 2 Milly and Ribeiro pure and simple, just because of the cash cow Fortnite became. They think its an easy target to rake in money in a settlement.

          They aren't exact representations though. They're computer generated images, not real life recreations. As trivial a difference as that sounds, its significant.

          Not true. If I was to record a version of of Hey Jude by The Beatles, I’d need to pay royalties to them even if it was a different arrangement and even if I credited them directly. If I tried to pass it off as my own without credit then I’d be the target of litigation for copyright infringement. Even if I just used the chorus, or the “na na na” hook, I’d be targeted. Either way, the original creator is due royalties.

          I think you need to reassess the part when you talk about how much is copyrighted. All it needs to be is a recognisable or integral part. Some sources say 10%. And sure, the dance isn’t 10% of a Fresh Prince episode, but the claim isn’t that they ripped of Fresh Prince in its entirely, it’s that they ripped off the dance, and what is represented is ~100% of the dance.

            With music there are two layers, the underlying composition and the recording. The songwriter owns the first, the studio usually owns the second. Each is a result of the full effort though, so in your Hey Jude example you're owing royalties to the songwriter for the composition and possibly to the studio as well. You're using a complete version of their product as the basis for your arrangement.

            That's not the case here. The composition of the media being used isn't complete like it would be rearranging Hey Jude. In the Fresh Prince's case that would be the script, in 2 Milly's case its the song and recording.

            Fair Use has been tested numerous times, and its still deliberately vague. Its expansive and open to interpretation by design. At its key is that its transformative, which is the vague part.

            One example of that is reviews, where you quote several lines of a song. The important part is the limited quoting of the work, not being a review part. You're using that limited part to create another product, which makes it transformative.

            Theres that word again. That's very similar to using part of a video clip, regardless of use, and to me makes this fair use. This sort of thing is what fair use is meant for, and why its definition is deliberately vague. Its trying to allow growth in media, not stump its growth like copyright laws do, simply by adding some reasonableness to using small parts.

            Before people point out the money linked to these Fortnite dances changes things, Rolling Stones magazine isn't free either, but uses that limited quoting as the basis of its business model. That's based totally around fair use provisions.

            End of all that, yes, using an integral part of something is important. Recognisable, not so much - reviews use recognisable parts and are clearly fair use. This isn't, its part of something bigger, and its that bigger product that's trying to sell, not these short portions. I cant see how these are so integral to either 2 Milly selling songs, or recognisable to determine Fresh Prince's success at the time.

            Ribeiro is also on record as saying he mimic'd an Eddie Murphy skit, and based the Carlton Dance on what Courtney Cox did in the Dancing In The Dark video clip for Bruce Springsteen. So he copied THOSE after being asked to "dance like a white person" - his words, not mine. Where does that leave his claim when he based it on others works?

            I'd say its fair use as well by the way, as a parody if nothing else.

            If these guys have a case, the courts will rule in their favour. But history tells me they wont have a leg to stand on, so the best they can hope for is some sort of settlement from Epic to make it go away.

            Which I think has been their goal from day 1.

              Firstly, it's nice to see such a considered reply, it was interesting to read, so thanks for engaging.

              I see where you're coming from for a lot of it–I wasn't aware of Ribeiro's comments on the dance, that does perhaps sway me with that particular case. I still don't think the inclusion of a dance in a video game would be considered transformative. I found this question that defines fair use. I'm sure it's not the only definition but it's a concise one:

              Did the unlicensed use “transform” the copyrighted material by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

              Source: http://cmsimpact.org/code/set-principles-fair-use-journalism/

              The dance is recognisable, is named after the character, and can't be classified as a parody or any other sort of transformation of purpose (as opposed to transformation of media, which you suggested). And since there is no transformation of purpose, the fact that it is monetised appears to be the sticking point.

              But, like you say, fair use guidelines are ambiguous (and necessarily so) so who can say what the result of this will be. It will set an interesting precedent, either way.

                Actually, if you have 27 mins worth of attention span for this topic, I'd suggest ignoring what I've written and just watching the video that nexi posted below (if you haven't already). It sure beats me just guessing at legal definitions.. guesses which are almost certainly missing the nuance of the topic.

                  Thanks for pointing out that link, was interesting. I guess his part around the 15 minute mark where he talks about his 10 hour choreography kinda sums it up for me. I think these are way into that small portion part of his argument, and not using a complete enough section of the product. He says it a lot better than me.

                  The moves are also vague and general so do they merit copyright protection in the first place? His opinion seems to be no, it doesnt. Not his job to make that call, and he openly admits he doesnt have all the facts, but I think his base is damn solid - a couple of hands swishing back and forth isnt exactly original.

                  I invented a dance move. I put my left foot forward, then I put my right move forward. Then repeat until the end. I call it The Walk. Thats about as original as 2 Milly's dance is... Have a look in the comments of Nexi's vid link - 2 Milly apparently admitted he got it from watching other people, so is that an admission that its not original?

                  Courts will decide if its original enough or not, but I'm with Leonard French in that it probably wont be. Others are perfectly entitled to disagree with me, but I've worked with legislation for 25 years and have seen that law doesnt rely on what you'd expect, but on the fine details.

        To have copyright for a dance in Australia (not sure if it's the same as in America), one of the criteria is that it needs to be original. Alfonso Ribeiro has revealed in the past that he based the dance move on the film clip of Bruce Springsteen and Courtney Cox. So, in that case, Bruce Springsteen owns the copyright ... unless he copied someone else, and they own the copyright ... and so on, and so on.

          Is it possible for a transformative work to have a copyright, if it is considered to be different enough from the original yet still clearly referential? Like, if Ribeiro claimed that the amalgamation of Springsteen and Cox, through the filter of parody for comedy, created a new work?

            Possibly. I’m not an IP lawyer so I couldn’t say for sure. I would have thought ‘land down under’ would have differed enough from ‘Kookaburra sits on the old gum tree’, but maybe it’s more strict for music. From a cynical point of view though, if Ribeiro did win this suit and I was a blood sucking lawyer for Springsteen, I would then go after him in the same fashion. I guess that’s how lawyers get so rich!

      It's a thorny topic. Generally people don't have a problem with using their creative works in non-commercial situations as long as it's not reflecting badly on it and you asked permission. When money does get involved though it gets a lot more complex because now you have a situation where people are making money off of your IP regardless of how much effort you may or may not have put into it.

      I'm no IP Lawyer but it's generally the same for cameos. There are fair use and parody laws in the US that protect certain uses but in all fairness if your copyrighted character is used as a cameo in someone else's game without your consent then you are likely well within your rights to ask them to remove it if you wanted.

        Its only a snippet though. Is the dance itself copyrighted, or the full video its a part of? This isn't a Torville and Dean choreography where the dance is the entire event, its a part of something bigger.

        Those bigger products aren't being infringed, and no court case has ever proven the portion also has the same rights as the expanded product. Which is why fair use exists.

        And I hope none do. The problems that creates are massive.

          Define snippet?
          Like if I pirated half a movie is that OK because it's just a snippet amd not the whole thing? Sorry I just don't understand the definition of a snippet.

            General definition of snippet is :

            Snippet

            noun
            1. a small piece snipped off; a small bit, scrap, or fragment:

            2. Informal . a small or insignificant person.

            Pretty sure I'm not talking about it being a small or insignificant person but I bolded the important part just in case you miss it.

            Heres a link to read for you to try and understand the concept of fair use, the general point behind all this. Spoiler: Its a deliberately vague definition so it doesn't limit transformative usage. Worth a read though if you really want to understand, its pretty much the core debate on this whole issue.

            https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

      I think the qualitative difference for Epic is that they are put a dollar amount on the dance itself. If you look at a game like Saints Row, it is hard to decide what value the character emotes contribute to the overall product. But for Fortnite, you can purchase the animation recreating one of these dances as a an independent microtransaction/DLC. Virtually all of the creative effort for that package comes from the choreographer rather than Epic.

        Yeah for sure, they have literally put a price tag on a dance move to profit from it. At the same time it baffles me that a 5 second movement holds any IP value. It seems no more petty than Apple trying to stop people using the "i" prefix because they were "genius" enough to add it to the front of the word Pod and later phone. What about Twerking etc. who owns the IP to other ridiculous dances.

          Courts have held that people can hold copyright on haiku poems, which clock in at 22 syllables. And while Epic might only be using ~ 5 seconds from the routines, it's enough to be recognisable. Further more, the names often make the association even more concrete.

          The Apple comparison is not really relevant though: trademarks are governed by different rules to copyright. For example, different but similar is not a problem for copyright in the same way it is for trademark.

            Damn I have confused the two, my comparison was more of how I see the situation. It doesn't seem right to me that 5 seconds of body movement is recognized as someones IP, much like a a letter in front of common word no matter how recognisable to one brand can't be trademarked. For most part I have been oblivious to any of these emotes despite playing a lot of the games they feature in.

        This.

        Forza likely would've gotten away with it because it's not monetised and simply riding the pop culture wave at the moment. The issue with Fortnite specifically is that they've directly monetised the dance(s) and are profiting from them on an individual basis.

        I'm not convinced that's relevant. This comes down to Fair Use, and the main part of that is the use being transformative which this is.

        Example often used is music reviews that quote song lyrics. Its transformative because its creating the review, even if its quoting the important part of a song.

        That's pretty much the business model behind Rolling Stones magazine, and last time I checked that wasn't free. In other words, theres a dollar value attached to using the portion of work that would otherwise be protected by copyright. Which doesn't change the Fair Use rights.

          The problem with a fair use defence is that the microtransaction effectively covers the dance and nothing else. It isn't critically commenting on the original work, and it isn't making something new by combining it with new work, so how is it transformative? Players are literally buying an animation script that performs the original work.

          Using your argument, I could sell 5 second clips from popular songs as ring tones and claim that I don't owe royalties because I've transformed them into ring tones.

    Leonard discusses the legality of whether dance is something that can be subject to copyright, and whether these situations where dances are added to games qualify as breach of copyright, or if they are considered transformative works
    https://www.youtube.com/watch?v=tiAlomq2EDU

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