Why Are Stars Suing Epic Games Over Fortnite Dance Moves?
The storm is good for Fortnite. No, not the blue wave that pushes you forward – the legal storm. Earlier this month, the trio of creators sued Fortnite ‘s publisher Epic Games for its use of dance moves they created that players can perform (and purchase) in-game with the click of a button.
Given Fortnite’s success , any lawsuit that could hinder its ability to monetize the game’s popularity is a huge challenge for Epic. However, the lawsuit also has broader implications for other developers who potentially charge fees for dancing or pop culture “emotions” in their games, as well as the broader cultural landscape – TV shows, movies, etc.
Things are happening pretty fast and there is a lot of legal jargon around these cases, so it can be difficult to understand the whole story. Let’s go over the basics so you know what’s going on and can keep an eye on these artists’ cases when lawsuits start heating up.
Who Sues Epic?
Three artists have filed copyright infringement lawsuits against Epic, claiming they deserve compensation for using Epic’s Fortnite dances without their permission (or any link). This has prompted many players to associate dance with Fortnite rather than its creators, and has earned dancers a whopping zero dollars in sales that Epic makes from the dancer’s original creations.
The first lawsuit was filed by rap artist 2 Milly for using a dance he created to accompany his song “Milly Rock” without permission or credit. Here is the music video for the song, which shows the dance:
Here’s the “Swipe” emote in Fortnite :
The second lawsuit that seems to have garnered the most attention came from Fresh Prince of Bel-Air actor Alfonso Ribeiro. Everyone knows how Tom Jones loves the “Carlton” dance, also known as “Fresh” in Fortnite:
Finally, Russell Horning, also known as the “Backpack Kid,” has filed a third lawsuit for using his signature “flossing” dance move, which Fortnite simply calls “dental floss.” (Formally, Anita Redd, Horning’s mother, filed a lawsuit on his behalf because he is underage.)
All three lawsuits require Epic to remove the dancing emotes from the game, presumably until they pay the license fee, as well as damages. If you’d like to read the full claims for all three lawsuits, Variety has posted the full documents.
It’s also worth noting that this isn’t just about Fortnite . According to TMZ , 2 Milli, Ribeiro and Horning have filed a second series of lawsuits against the game’s second publisher, 2K Sports, for using their dances in the NBA 2K basketball series.
Why is this happening now?
Three lawsuits all at once may sound like a surprise, but a number of artists have publicly rebuked Fortnite for using their dances without permission over the past six months.
In July, the Chance Rapper posted a series of tweets suggesting that Epic should attribute Fortnite ‘s emotions to the pre-dance they are based on and, when applicable, license songs associated with them.
Another actor, BlocBoy JB, shortly thereafter wrote on Twitter that he would receive fees for games that use dance from corporate him «Shoot» Song who Fortnite fans can learn how to dance emotion «Hype».
In November, Scrubs actor Donald Faison said that Epic “pulled” its “Poison” dance from the show to make Fortnite’s victory dance the default.
All of this, as Chance points out in his original tweet, is also part of a larger cycle of cultural appropriation. Four of the five artists we mentioned whose dances were posted to Fortnite without permission are black. Corporate structures have long found ways to repurpose and profit from the creative work of black artists.
In other words: the artists were angry for a while. It was only a matter of time before someone decided to formalize and take legal action.
Do they have a case?
Epic has told several media outlets that it has no plans to publicly comment on the lawsuits while they are ongoing, but they are unlikely to argue otherwise.
Instead, Epic might try to claim the dances are not distinctive enough to be worthy of copyright protection. Dance choreography may be copyrighted , but the US Copyright Office specifically states that “ordinary movements and gestures” cannot be copyrighted. This includes certain short dances such as “YMCA” because they are just people creating shapes with their hands. Epic could also argue that dancing in Fortnite is part of a broader process that goes beyond “dancing,” according to a legal expert who spoke with Variety .
What does this mean for Fortnite?
Nothing right now. There have been no injunctions to stop selling Epic emotes immediately, so they are likely to remain in the game for the foreseeable future. If the court rules in favor of one or all of the creators, Epic may remove the dances to avoid paying the creators in the future. But even if dancing remains, any court ruling is likely to change the way Epic and other game developers approach emote, especially if they are sold as in-game purchases.
To prevent lawsuits from other artists, companies should theoretically negotiate and buy permits to portray famous dances in games, much like companies pay license fees to play songs in games, on television, and in films. This could include paying artist royalties if these dances are found to be in-game purchases.
A private agreement between Epic and those who sue her, even if the creators get paid, will not create a legal precedent for maintaining the status quo. However, the artists behind the lawsuits have reason to expect an unconditional victory: all three are currently in the process of formally defending their dance rights, and the results of the lawsuit could affect his claim.
Since none of these claims have been scheduled for consideration yet, it is likely that it will take months, maybe even years, before the results are known.