Fortnite Dance Lawsuits Dropped, At Least For Now

On March 4 the U.S. Supreme Court ruled that people must complete their registration with the Copyright Office before they can sue for copyright infringement.

As a result, lawsuits against the makers of Fortnite, Epic Games, over certain dance emotes available in the game have been dropped until the Copyright Office’s review of the dances involved is complete.

“The recent U.S. Supreme Court decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com brought forth a major change in copyright law in much of the country,” David Hecht, the attorney representing rapper 2 Milly, Fresh Prince actor Alfonso Ribeiro, and four others in lawsuits against Epic Games, told Kotaku in an email.

“Previously, plaintiffs could file copyright infringement lawsuits as soon as they applied for a registration with the Copyright Office. Now, plaintiffs have to wait for the Copyright Office to act on that application before filing suit, which, as a result of its backlog, can sometimes take many months.”

The string of lawsuits began last December with 2 Milly suing Epic for putting his Milly Rock dance in Fortnite in June of 2018 in the form of the “Swipe It” emote.

Ribeiro then filed a lawsuit against the game company a couple weeks later over Fortnite’s “Fresh” emote which lifts his iconic Carlton dance from The Fresh Prince of Bel-Air. Since then, others, including the Instagramer known as Backpack Kid, have also filed lawsuits claiming Epic stole their dances.

In February, Epic Games responded to the claims in the 2 Milly lawsuit with a motion to dismiss, arguing both that the Milly Rock was too simple a dance move to be protected as choreography under the Copyright Act of 1976 and also that it differed from the Swipe It emote that appears in Fortnite.

The company also shared correspondence with the court at that time that showed Ribeiro’s claim had been denied by the Copyright Office, which decided the Carlton was only a “simple dance routine” and thus couldn’t be copyrighted.

A registered copyright is not required in order to sue for copyright infringement, although having one certainly helps. Following the Supreme Court’s latest ruling, however, the Copyright Office must now at least finish processing a registration request before someone can go forward with a lawsuit.

“To best conform with the law as it stands in light of the Supreme Court decision, our clients have dismissed their current lawsuits and will refile them,” said Hecht. “We will continue to vigorously fight for our clients’ rights against those who wrongly take their creations without permission and without compensation.”

A spokesperson for Epic Games declined to comment. 


Comments

    While I think the "dance lawsuits" were frivolous this really points out the fundamental problems with intellectual property. The whole you don't need a work to be copyrighted to be protected, but then if it's not copyrighted is just stupid. I understand why it's allowed but it also makes for messy scenarios like this. Where someone does something and by dumb luck it becomes popular so they try to retrospectively claim copyright and sue someone.

      As I understand it, theres a default level of copyright protection for dances, just from the recording of it. Its considered enough evidence. But it also seems that its now not enough, and they need to go get copyright and presumably backdate it. Which I also think is wrong.

      Do some searches though and you'll find that this has never been tested, so I'm not surprised the courts have erred on the side of caution. What its going to do though is establish a copyright, backdated to Date X, and find Epic has breached that backdated copyright. Which then leads to this all heading up the chain to the Supreme Court as the copyright application is dated after the breaching event. Its basically entrapment.

      That all assumes the Copyright Office grants copyright of course. Theres no guarantee of that, as I believe its the whole act that gets the copyright, and not selected segments. Plus, it needs to be more creative than just waving your hands around. I've seen copyright lawers make the statement that they don't believe 2Milly meets the creative test, and others have said the same about Ribiero.

      A choreographed routine, such as Torvill and Deans dance to Bolero that led to an Olympic Gold medal would be copyrighted but as the dance is made up of individual moves, those moves wouldn't. They're too generic, while the whole dance is specific.

      This isn't over, not by a long shot. So get the popcorn, and strap yourself in :)

        I think it's a super difficult thing to try to claim copyright on. Take the difference between a boor or movie and a dance. While conceptually they are similar in that you can break any of them up into small, non-copyrightable components and it's the assembled product that is copyrightable there is far less effort involved with a dance.

        I mean all it takes for a song to be successfully sued is a few chords. I'm thinking of Under Pressure and Ice Ice Baby. If they apply that logic to dance... wow it's going to be a shit-fight.

        It could be literally 3 or 4 key moves being repeated. It's hard to imagine that no one somewhere at sometime in the world hasn't used that combination of moves in a dance. But because it was recorded it's not protected. And if it has been then holy shit what's to say we won't see law suits from stuff done 50+ years ago. Imagine Chuck Berry's estate suing Back To The Future.

          Yeah, thats why I used the Torvill and Dean example. Famous act, but ultimately made up of common moves. The act in its entirety would have copyright, the specific moves wouldnt, just because they're so generic.

          Another example is the moonwalk. Michael Jackson didnt invent it, Cab Calloway was doing it nearly 100 years ago. But if someone tried to use the entire Thriller routine, the individual pieces combine to make a specific act.

          They're all things that I dont think have ever truly been tested though. To me, the moves are too generic - look at 2Milly's 'move' and anyone could do it - so arent inventive enough on their own to earn copyright status. The entire video clip would, but a small portion probably isnt enough of it to prove copyright breaches.

          Having said that, like chords, some of moves are distinctive and identifiable to a specific person or act - the moonwalk, even being copied from earlier performances IS associated with Jackson. Which would make them inventive and hence protected in some way.

          I dont think the ones being talked about do that though. Ribiero's Carlton dance would come the closest, because it has a little inventiveness about it, but its also a copy of earlier works by his own admission.

          But again, I cant find an example of this ever being fully tested in court. So if it does go the full distance, watch out for the fallout. Which as you say, will open pandoras box of retrospective actions. Personally, I think its just a money grab and they're aiming to settle out of court.

            Yeah this is why I think it's a big mess. Using the "floss" move as an example (or a moonwalk) and comparing it to a novel it's like one word. It's not even a sentence or a paragraph. So I find it incredibly difficult to apply the idea of copyright to it.

            I feel like a work needs to be "substantial" ie: it takes some time and effort to produce in it's entirety. Not two seconds of wiggling your hips.

    Headline seems a bit misleading. They were dropped due to a procedural change unrelated to the substance of the dispute, and the claimants clearly have every intention of refiling once the Copyright Office has completed their registration process.

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