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Hey! That's My Move!
The U.S. Supreme Court just crashed the copyright world's latest dance party — stepping on the toes of a soiree of copyright infringement lawsuits against videogame developer Epic Games, the creator of Fortnite. For months, a growing group of plaintiffs, including Alfonso Ribeiro, otherwise known as the self-confident yet naive character "Carlton Banks" from TV's The Fresh Prince of Bel-Air, raised claims that Fortnite was using popular dance moves without the permission of the artists who popularized them.
Fortnite, a massive multiplayer, online battle royale game, gives players the ability to purchase or earn "emotes," which are essentially a series of code giving game characters impressive dance moves — moves which largely mimic famous dances from pop culture. Although Fortnite is free-to-play, it generates significant revenue from in-game purchases such as emotes. While emotes are not central to gameplay, their ubiquity has helped Fortnite reportedly generate over $2.4 billion in 2018, its second year on the market. Fortnite's emotes have transcended beyond the game and into the realm of social media, where life imitates art as fans and players post clips of themselves performing emote dances from the game. See, Complaint ¶23, Ribeiro v. Epic Games, Inc., et al., No. 2:18-cv-10412 (C.D. Cal. Dec. 17, 2018).
For their part, the artists who inspired the emotes haven't been compensated. Hence the string of infringement claims against Epic Games, including claims by: rapper Terrence Ferguson (a.k.a. "2 Milly") for the unauthorized use of his "Milly Rock" moves (Ferguson v. Epic Games, Inc., et al., No. 2:18-cv-10110 (C.D. Cal. Dec. 5, 2018)); YouTuber Russel Horning (a.k.a. "Backpack Kid") for the unauthorized use of his "Floss" dance (Redd v. Epic Games, Inc., et al., No. 2:18-cv-10444 (C.D. Cal. Dec. 17, 2018)); YouTuber "Orange Shirt Kid" for the unauthorized use of his "Random Dance" (McCumbers v. Epic Games, Inc., et al., No. 2:18-cv-10110 (C.D. Cal. Jan. 11, 2019)); rapper James Baker (a.k.a. BlocBoy JB) for the unauthorized use of his "Shoot" moves (Baker, et al. v. Epic Games, Inc., et al., No. 2:19-cv-00505 (C.D. Cal. Jan. 23, 2019)); two former University of Maryland basketball players, Jaylen Brantley and Jared Nickens, for the unauthorized use of their "Running Man" grooves (Brantley, et al. v. Epic Games, Inc., et al., No. 8:19-cv-00594 (D. Md. Feb. 25, 2019)); and Ribeiro for the unauthorized use of the "Carlton" dance from the Fresh Prince (Ribeiro v. Epic Games, Inc., supra). None of the plaintiffs had copyright registrations for their dance moves prior to serving the complaints.
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