Fortnite keeps stealing dances — and no one knows if it’s illegal (1 Viewer)

Optimus Prime

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Can our legal members weigh in? Is this legit?

Can you copyright a dance?
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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...…….

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.)………………...

https://www.theverge.com/2018/12/20/18149869/fortnite-dance-emote-lawsuit-milly-rock-floss-carlton
 

superchuck500

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Copyright applies to “choreographed works” that includes a dance that is original to the creator and sufficiently creative as to qualify as a work - and the copyright attaches at the time the dance is recorded (fixed to a medium).

Because (unlike trademark) you don’t have to register copyrights, the question of whether the original work met the criteria for copyright and whether the subsequent use violated that copyright commonly require litigation.

Here, it seems that Fortnite is clearly using these dances because they’re recognizable - so if the various dance “creators” can show that they met the copyright criteria for the dance, I think Fortnite (Ten Cent or whatever subsidiary) has a problem that will probably require a settlement.

But that presumes these dances meet the criteria, and I’m not sure if they do. I think both were fixed to medium before the subsequent use by Fortnite, but what about the other criteria? The Carlton is probably original to Alfonso Ribeiro, but is it sufficiently creative? Or is it sort of a silly, over-exaggerated version of an existing dance? And for Backpack Kid, is that original to him - or is he just applying a somewhat unique style to a dance move that was going around in the street/club culture? I don’t know enough about ‘flossing’ but if the dance already has a name by the time you do it, there’s going to be a big question of originality.

https://www.legalzoom.com/articles/how-to-copyright-a-dance
 

St. Widge

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IMO, Fortnite is in trouble if anyone attempts to take action against them for violating the copyrights on those dances. It will obviously depend on the specific dances, but I think The Carlton and a few other clearly would have copyrights. And Fortnite isn't going to be the only one with a problem. Destiny uses dances too and I'm sure other games do as well. They specifically had The Carlton and The Floss dance. Destiny even used the classic Michael Jackson Thriller Dance and the Pennywise dance from IT. Given that I bet everyone knows what I'm talking about, those are likely violations unless Bungie/Acitivision paid the copyright owners. And I don't know if they did or not.
 
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St. Widge

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thanks bud.
Here you go:

1. Copyright is created automatically upon creation of intellectual property (art, song, dance, book, etc.), you don't need to file anything.

2. To have a copyright created, the intellectual property, in this case a dance, has to be unique enough to basically be recognizable and distinct from other dances. So basically, unique.

3. That probably applies to The Carlton, the Thriller dance, and the Pennywise dance. And might apply to other dances depending on the facts.

4. If a company uses the dance without paying for it, they are likely to lose a suit for violation of the copyright. (There are defenses to copyright like fair use, i.e. satire, but if you use it to make money it's not a fair use and that is clearly what is being done here.)
 

superchuck500

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But that presumes these dances meet the criteria, and I’m not sure if they do. I think both were fixed to medium before the subsequent use by Fortnite, but what about the other criteria? The Carlton is probably original to Alfonso Ribeiro, but is it sufficiently creative? Or is it sort of a silly, over-exaggerated version of an existing dance? And for Backpack Kid, is that original to him - or is he just applying a somewhat unique style to a dance move that was going around in the street/club culture? I don’t know enough about ‘flossing’ but if the dance already has a name by the time you do it, there’s going to be a big question of originality.

https://www.legalzoom.com/articles/how-to-copyright-a-dance
Turns out, my question about whether Alfonso Ribeiro's dance was sufficiently original to qualify for protection was answered today: No.

It's the U.S. Copyright Office's determination and subject to challenge in court, but it seems right to me.

The U.S. Copyright Office is skeptical about Fresh Prince of Bel-Airactor Alfonso Ribeiro's ownership claim over the signature "Carlton Dance," which became famous after a 1991 episode of the Will Smith series.

In correspondence last month that was surfaced on Wednesday in California federal court, Saskia Florence, a supervisory registration specialist in the Office's Performing Arts Division, told Ribeiro's attorney that registration must be refused because his claimed "choreographic work" was a "simple dance routine."

"The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner," wrote Florence (see here). "In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer's feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers. The combination of these three dance steps is a simple routine that is not registrable as a choreographic work."
https://www.hollywoodreporter.com/thr-esq/copyright-office-refuses-registration-fresh-prince-star-alfonso-ribeiros-carlton-dance-1186666
 

SystemShock

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Turns out, my question about whether Alfonso Ribeiro's dance was sufficiently original to qualify for protection was answered today: No.

It's the U.S. Copyright Office's determination and subject to challenge in court, but it seems right to me.



https://www.hollywoodreporter.com/thr-esq/copyright-office-refuses-registration-fresh-prince-star-alfonso-ribeiros-carlton-dance-1186666
Ribeiro was never going to win because The Carlton is not original and it already had been portrayed in film years before the Prince of Bel Air aired an episode. His character is simply doing the "white people's dance" of the 80's, like Molly Ringwall in The Breakfast Club (1985), or music videos like 1982's Mad World by Tears For Fears.

Now, the question I have, would the intellectual owners of The Fresh Prince of Bel Air have a case? The dance plus the name "fresh" makes it obvious where they got the idea from.
 

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