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.
Now, the process behind how those emotes are created and whether they can actually violate the copyright of a work of art is coming under scrutiny. It’s the beginning of a complicated and precedent-setting series of legal cases, dealing with both dance as an art form and the video game industry at large. The biggest question is whether a dance move can be copyrighted at all — a legal matter that has never been fully answered. Beyond that, the court will have to decide whether using a dance move in a video game can be considered appropriating someone’s likeness, in effect using someone else’s identity to sell something.
The first case comes from a rapper called 2 Milly, whose real name is Terrance Ferguson. Earlier this year, Epic put 2 Milly’s signature dance, the Milly Rock, into Fortnite as an emote called “Swipe It.” Although Epic never sold the dance directly for money, it included “Swipe It” as part of its season paid subscription service. Ferguson began criticizing Epic for not asking his permission or providing him any compensation. Later, Chance the Rapper blew the complaint up further when he called out Epic for exploiting the art of black performers for its own financial gain.
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.)
All three are represented by the same law firm, Pierce Bainbridge Beck Price & Hecht LLP, and are suing on roughly the same grounds. The complaints allege copyright infringement and violations of the right of publicity — the personal rights that govern how an individual can control and profit off the use of their own likeness, name, and other identifiable traits. Although the two claims are separate, winning either one could cost Epic a substantial amount in damages. More significantly, it would require licensing deals for the dance moves used as the basis of emotes, resulting in significant changes to Fortnite itself.
Epic declined to be interviewed for this story, saying it does not comment on ongoing litigation.
SO YOU THINK YOU CAN COPYRIGHT A DANCE
In some ways, Ferguson’s dance is exactly the kind of thing intellectual property law usually protects. If Epic played Ferguson’s song, “Milly Rock x 2 Milly,” when the Swipe It emote was engaged, it would be an obvious infringement of Ferguson’s copyright in the song. (In fact, Epic creates all of its own music for emotes in-house, to avoid just that issue.) If Epic turned Ferguson into a playable Fortnite character without his permission, it would be a clear violation of his right of publicity.
But the claims are more complicated when it comes to dances. Epic took a dance Ferguson popularized, turned into a visual asset with motion graphics, and then made it into a reward for playing a lot of Fortnite. So the first question would be whether a dance move can be protected by copyright at all.
“THERE’S NO DEFINITIVE CASE LAW DETERMINING THIS.”
Most dance moves do not constitute copyrightable works because they do not, under current copyright law, rise to the level of choreography. Deciding if a work of dance is protectible choreography is a subjective evaluation typically based on length and prestige. Individual dance moves — like the worm, the macarena, or the moonwalk — have historically been left out. The Copyright Office’s own guidance is clear: “individual movements or dance steps by themselves are not copyrightable,” it says, specifically calling out the waltz and “the hustle step.” (The Copyright Office is not super up on trends,)
But the matter has never actually been argued in court, explains Merlyne Jean-Louis, an entertainment lawyer who also happens to be a former dancer. “We don’t know the answer to whether a dance move can be copyrighted,” she says. “There’s no definitive case law determining this.” When the Copyright Act of 1976 was passed, it finally established rules around choreography, with some limited fair use cases around criticism and dance education. Strangely enough, it covered even pantomime, but not an individual dance move as we’ve culturally come to understand it in the ensuing decades.
There may be a good reason for that. Individual dance steps, like individual words and musical notes, can often form the foundation of other pieces of art. If an artist could claim a copyright in an individual step, it may make free expression with the human body prohibitively difficult without legal risk. It also opens up all sorts of thorny edge cases around street performance and other public forms of dance, as well as the actions of countless people on social media, YouTube, and other online video channels. If the moonwalk were owned by the estate of Michael Jackson, it could maybe then sue a high school impersonator for doing it on video and then publishing it to YouTube.
THE DRAFTERS OF THE COPYRIGHT ACT NEVER FORESAW THE EMERGENCE OF INTERNET MEMES
“I think the concerns were more that people would try to copyright exercise systems, or combinations of yoga postures, which are traditional,” says Jennifer Lantz, an intellectual property and trademark lawyer with Haynes & Boone. “Or traditional social dances like the waltz or the foxtrot. Those are specifically excluded in the copyright office guidance.”
But Lantz says that complex choreography, like legendary choreographer George Ballantine’s version of The Nutcracker, is inarguably an original piece of art. Such classic forms of dance can be translated into choreographic notation on paper, which further establishes a right to ownership. “Everybody would agree that that entire piece, which is over two hours, is sufficiently creative to be copyrightable,” she says. In such cases, a piece of dance, like a ballet, having characters and a story or narrative of some sort goes a long way.
But if small combinations of individual dance steps can be copyrighted, does that make borrowing someone else’s move onstage during a performance an act of infringement? How much differentiation is enough differentiation for something to become an original work of dance? Is there a certain length required for a dance move before it transitions from an individual series of steps and into a choreographed piece of art? Of course, the drafters of the Copyright Act never foresaw the emergence of internet memes, or that online games would repurpose them as a means of digital commerce. If emotes do clear the threshold for copyright, the implications would be far bigger than one or two celebrities.
All three lawsuits against Epic say the plaintiffs are actively seeking registration of their copyright, and it’s not necessarily required that they succeed before the lawsuits can go forward. But it is often good practice to register prior to filing the suit because it provides proof of ownership, Jean-Louis says.
Ferguson is believed to have invented the Milly Rock in the music video for “Milly Rock x 2 Milly,” but Horning’s case is less clear cut. He popularized his dance on Instagram and later during Katy Perry’s SNL performance in 2017, but as pointed out by Eurogamer, there are instances of people flossing as early as 2011. Horning also participated in a promotional event for Epic, its Pro-Am celebrity tournament during the E3 convention in Los Angeles this pass summer, where he told the crowd it was “not that big of a deal” that Epic didn’t compensate him.
Ribeiro’s case is murkier. TMZ recently published a tape in which Riberio says he stole the dance by blending moves he saw Courtney Cox perform in Bruce Springsteen’s “Dancing in the Dark” music video and Eddie Murphy’s iconic “white people can’t dance” bit, claiming it was his interpretation of how a white person would dance back in 1991 when the Carlton made its debut.
Lantz says this may be less of an issue, at least with regard to the cases getting dismissed outright. “The Copyright Office doesn’t decide if you are the originator of something. Just that it meets the originality requirements for copyrightability,” she says. “Copyright allows you to recombine elements. There’s only a certain number of music notes, or words in the English language and music notes. We combine things all the time and those are deemed original.” Ribeiro may have also created the dance while on contract with the Fresh Prince producers, which could give them more viable claim to the dance.
A FRAME-BY-FRAME COPY?
Even if the court accepts that the dance is copyrightable and the plaintiffs hold the relevant copyrights, there’s still the question of whether game designers violated those copyrights. Epic could argue it was inspired by the Milly Rock and Carlton Dance, but the emotes themselves are a completely different work. At that point, the question of exactly how Epic creates its emotes will become central to the case.
According to Ferguson’s complaint, Epic is copying videos frame-by-frame to create the dances, a case of straightforward copying. “Epic creates emotes by copying and coding dances and movements directly from popular videos, movies, and television shows without consent,” alleges the complaint. “Epic does so by coding still frames of the source material. For example, upon and information and belief, Epic coded the ‘Ride the Pony’ emote, frame-by-frame, from the ‘Gangnam Style’ dance made famous by the Korean entertainer, Psy. The Ride the Pony emote and Psy’s dance are identical in every respect.”
EPIC’S EMOTE-CREATION PROCESS COULD COME UNDER SCRUTINY
But that complaint is just an allegation, and we don’t know for sure if it’s true. Epic has never expressly told the public how it creates its dances — some may be made using traditional animation techniques or professional dancers recreating the moves.
If the suit does go to court, Epic’s emote-creation process would likely come under scrutiny. “I think that’s certainly one of the risks, if there’s any intermediate copying. Like if you copied code [from an online video file]. Is that then fair use, like reverse engineering, or is that in and of itself infringement?” Lantz says. The question, like others in these cases, has never been answered by the courts.
CAN YOU DO THE CARLTON DANCE WITHOUT BECOMING CARLTON?
In a more ambitious turn, the lawsuits argue that the entire concept of a video game emote involves using someone’s likeness, similar to putting Carlton’s face on a billboard or storefront. “Through their use of The Dance as an in-game dance emote that can be purchased as The Fresh, Defendants misappropriated Ribeiro’s identity,” reads Ribeiro’s complaint. “The Fresh emote depicts Ribeiro performing The Dance.”
This is a matter of interpretation: does performing the Fresh emote in Fortnite mean you’re impersonating Carlton Banks from The Fresh Prince? Of course, Ribeiro doesn’t exist as a character in Fortnite, but the suit is arguing that the existence of the emote misappropriated his identity without permission, effectively robbing Ribeiro of his right to control the commercial use of his likeness. And then there’s the existential issue of Ribeiro not actually being Carlton Banks, who is a fictional character owned by NBC. If The Fresh makes people think of Carlton Banks, not Ribeiro, his argument gets more complicated.
Lantz says the video game industry is more familiar with likeness cases than with something like dance and copyright. Numerous high-profile cases involving celebrities suing game studios over claims of identity misappropriation have made headlines over the years, with one of the most prominent being Lindsay Lohan’s lawsuit against Grand Theft Auto V developer Rockstar Games. (A judge determined the game’s satirical nature protected it.) Typically, if the likeness is being alluded to and not directly referenced through physical traits, Lantz says, “that hasn’t gone well for the celebrity.” (One notable exceptionis former college basketball player Ed O’Bannon’s successful class-action lawsuit against the NCAA for licensing out its name and player likenesses to EA Sports, without compensating athletes or letting them appear officially in the games.)
It’s going to be months before any substantial movement happens on these cases, and there could be a lot of roadblocks along the way. But it’s already clear that the video game industry, and Epic in particular, has been profiting off public forms of expression in a way that copyright law never quite anticipated. “Some people say, ‘Oh it’s not an issue, but times have changed.’ But even if the courts say dance moves can’t be copyrighted, maybe Congress will change the law,” says Jean-Louis. “It seems intuitively not fair.”