Fortnite has brought millions together as an online gaming sensation. It’s also led rapper 2 Milly, a 1990s sitcom character, and the inventor of the “Flossing” dance to sue gamemaker Epic Games Inc. for using their moves without permission.
The lawsuits involve questions about whether seconds-long dance moves deserve copyright protection, or are so closely identified with an individual that a right to control an image in commerce, known as right to publicity, can be violated even if actual images aren’t used.
Intellectual property attorneys say the plaintiffs are likely to have an easier time pursuing their right-of-publicity claims than their copyright allegations.
“I think it’s going to be a right-to-publicity case. That’s where I think the most interesting arguments are,” Margaret Esquenet of Finnegan Henderson Farabow Garrett & Dunner LLP in Washington said. “The plaintiffs could say ‘This is me, part of my persona, that you are intending to copy and provide a commercial product that is evocative of me in this game.’”
Rapper 2 Milly sued Epic Games Dec. 5 for copying, renaming, and selling his Milly Rock dance move to players who can buy and prompt their characters to perform the move. Actor Alfonso Ribeiro, known for his role as Carlton on the 1990s TV show “The Fresh Prince of Bel-Air” and Russell Horning, the creator of new viral dance move “Flossing” who also goes by the name “Backpack Kid,” have since also sued.
Fortnite’s individual sales of the dances created a unique element that could help the artists argue against a fair-use defense and establish clear damages. But the plaintiffs also could also hit an obstacle, because the characters that ultimately perform the dances in the game don’t resemble them.
In weighing the right-to-publicity claims, one question for the courts is whether Epic Games’ use of the dance moves amounts to a permissible, transformative expression of art, Rob deBrauwere, co-chair of Pryor Cashman LLP’s digital media practice group in New York said.
First Amendment considerations have sunk copyright and trademark lawsuits brought by Mattel Inc. over art featuring burnt Barbie dolls and Auqa’s song “Barbie Girl.” The makers of the Grand Theft Auto video game also prevailed in a lawsuit by Los Angeles strip club Play Pen over a depiction of a strip club in the video game called Pig Pen.
But multiple appellate courts ruled against video game maker EA Sports because they used college football players’ likenesses in ways that weren’t transformative.
Arguments could be made on both sides in the three Fortnite cases, deBrauwere said.
Attorneys at Pierce Bainbridge Beck Price & Hecht LLP who represent all three plaintiffs, did not respond to Bloomberg Law’s request for comment. Epic Games also did not respond to a request for comment.
The copyright claims hit at a somewhat under-explored area of the law.
Choreography is protected under copyright law but individual moves generally aren’t, copyright attorney Leonard J. French said. Case law on how substantive choreography must be to deserve copyright protection is limited, at least in part because choreographers, don’t often launch copyright lawsuits.
The question, French said, is whether the works in question are original and contain a minimal amount of creativity.
“It’s very interesting. But I think it’s a huge uphill battle for the plaintiffs,” French said about the plaintiffs’ copyright arguments. “I think the judge is going to want to see a longer sequence” to justify protection, he said.
DeBrauwere, questioned whether Alfonso owned the moves, or if they belonged to the owner of the TV show copyright. However, the actor could argue that the well-known dance move is strongly associated with him.
Another issue is whether the artists have standing to sue for copyright infringement because they don’t yet have registered copyrights on their dances, although they have applied. The Supreme Court Jan. 8 will hear oral argument in a case concerning whether an application is sufficient for standing in copyright cases.
If the artists secure copyright registrations, Epic Games would also likely challenge their validity.
The artists, on one hand, could argue that “the dance is not integral to the artistic expression, I’d say it’s advertising or trade, it’s commerce.” But the game maker could defend their use of the moves as artistic since it “creates element of dance, of fancifulness,” deBrauwere said.
Esquenet said she doubted the dance moves would be entitled to copyright protection. She also had doubts about trademark claims in Horning’s “Flossing” case, saying the legal definition of trademark requires use as a source-identifier for something being sold.
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