I Can’t Believe I’m Writing An Article About Fortnite!

I never thought I’d write an article about Fortnite, but it’s the subject of several copyright lawsuits – real life battle royales – and definitely worth a blog post.

For anyone who doesn’t know, Fortnite is an online, multiplayer battle game created by Epic Games, and has quickly become a cultural phenomenon.  Since its release in 2017, it has attracted more than 200 million players, and earns hundreds of millions of dollars each month.

To the dismay of many, Fortnite is a shooting game – though there’s no blood and players can quickly “respawn” after being eliminated.  To the amusement of many, characters can “emote” during the game – by breaking into short, funny dances.  In multiplayer games, where players cannot “speak” to each other, they can express happiness, excitement, silliness or confusion by dancing for their teammates.  Emotes can be slowly earned or quickly purchased within the game.  Ka-ching!!!

Most or all of the Fortnite dances were inspired by dance moves created by fictitious characters, musicians or social media stars.  My favorite, “Jubilation” was inspired by Julia Louis-Dreyfus’ character Elaine on Seinfeld. “Chicken” was inspired by a dance that Will Arnett repeated in episodes of Arrested Development. “Orange Justice” was famously inspired by a video posted on YouTube by a teenager known as “Orange Shirt Kid.”  If you’re curious, there are lots of videos about the Fortnite dances, like this one.

In December 2018, three lawsuits alleging copyright infringement were filed against Epic Games. Rapper 2 Milly (creator of the move known as “Swipe It”), Alfonso Ribeiro (the co-star of the 90s sitcom The Fresh Prince of Bel-Air and creator of the “Carlton Dance”), and a teenager known as Backpack Kid (famous for popularizing the “The Pickle” a/k/a “Floss”) are all miffed that Epic Games is using their dances in Fortnite, and profiting from their signature moves.

Each lawsuit alleges that Epic Games is infringing the copyright in the dances, and seeks to block Epic Games from using the dance moves, an award of the money earned off the moves, punitive damages, and attorney’s fees.

Alfonso Ribeiro filed a similar lawsuit against Take Two Entertainment – alleging that Take Two violated his copyright in the Carlton Dance by using it in the game NBA 2K.

Late last week, counsel for Take Two filed a motion to dismiss that lawsuit raising arguments that, if successful, should apply equally to, and benefit, Epic Games.

Take Two’s motion disclosed that the United States Copyright Office has twice refused to register the copyright in the “Carlton Dance,” because the claimed work is “too simple” of a dance routine to be protected by copyright.

Take Two’s lawyers argued that the Copyright Office rightly refused to register the Carlton Dance.  While copyright does protect “choreographic works” (defined as the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole), simple routines are neither choreographic works nor copyrightable.  Instead, individual dance steps and short routines are akin to unprotectable ideas – they are the building blocks of choreographic expression.  Since the Carlton Dance is not protected by copyright, Take Two’s lawyers argued that Mr. Ribeiro cannot allege copyright infringement.  Take Two made other arguments that could defeat Ribeiro’s claim, including that any copyright in the Carlton Dance is owned by NBC not Ribeiro — under California law, a show’s producers own the performances of its actors, and NBC owns the copyright in the episode of the Fresh Prince of Bel Air in which the Carlton Dance first appeared.

If Take Two prevails, it is likely that similar rulings will follow in the three Fortnite cases, and Epic Games will continue to profit from its library of dance moves snapped from pop culture.

There is an important lesson here for business owners – a reminder that ideas are not protectable, and short or simple expressive works are hard to protect with copyright.  A third party’s unauthorized use of a short song lyric, a jewelry design comprised of a simple heart, a basic logo, or a single dance move is likely not sufficient to give rise to a copyright infringement claim.  Of course, every case needs to be examined on its merits, and there might be other claims to pursue.

Many thanks to my son Owen for inspiring this post!