LEGAL BATTLE LOADING . . . . .
Terrence
Ferguson, commonly known by his stage name “2 Milly”, opened the door to a very
important inquiry when he formally announced that he is suing Epic Games, Inc.
the creators of the battle-royale phenomenon Fortnite. The rapper, recognized for his song “Milly Rock”, is
suing Epic Games, Inc. for their use of his “Milly Rock” dance as apart of the
gaming experience in Fortnite. After
his public decision to file suit, two more celebrities “joined the match” for
the use of their dances. Alfonso Ribeiro, famously known as “Carlton Banks”
from the Fresh Prince of Bel-Air, has
now decided to sue Epic for their use of his “Carlton Dance.” And Russell
Horning, known as Backpack Kid, is suing Epic for their use of his viral “floss
dance.” There are even rumors now that everyone’s uncle Snoop Dogg will join
the legal battle for their use of one of his dances, but these have not been
confirmed.
So,
what exactly is the inquiry that this lawsuit has sparked? Well, it appears
that the big question on a lot of people’s minds is whether a dance can be
copyrighted. More specifically, whether these dances (the Milly Rock, Carlton,
and Floss) are “original works of authorship” or as Intellectual Property Attorney
Matt Acosta stated to Variety, “sufficiently
original from other dances.” According
to Acosta, this means that there should be “original elements to these dances
than were historically created and performed.” Many, perhaps even the
plaintiffs here, will argue that the social impact and phenomenon of these
dances could lead to a favorable outcome for these plaintiffs. For instance, a lot
of 80s, 90s, and even a few babies born in the early 2000s, have imitated the “Carlton
Dance” as a result of watching Fresh
Prince of Belaire. But now, a whole generation of children born in the 2010’s
may come to recognize it as a “Fortnite Dance.”
Similarly,
in 2015 or two years before the launch of Fortnite,
2Milly released the song “Milly Rock” and the video featuring the “Milly Rock
Dance” has an astounding 18 million views on YouTube. Celebrities like Chris
Brown and a host of other YouTube users, have also racked up millions of views
on YouTube imitating the dance and referring to it as “The Milly Rock.” And “the
floss dance” went viral in May of 2017, a few months before the release of
Fortnite, when BackPack Kid performed the dance during a performance of Katy
Perry’s song “Swish Swish.” Since then, the video of BackPack Kid performing the
“floss dance” has had well over 100 million views on YouTube and has caused people
all over the country to create their own videos with millions of views. These
facts could certainly help advance the arguments made by plaintiffs that these
works made enough social impact to give them credit as being the originators as
well as the dances being original in nature.
As
a result of the nearly 100-200 million users being exposed to these dances
within gameplay, there were “Fortnite Dance Classes” popping up across the
country. These dance classes were designed to teach children, teens, and even
some adults how to properly perform “Fortnite Dances” – which inevitably
included “The Milly Rock, “The Carlton Dance”, and “The Floss.” Did calling them
“Fortnite Dances” by Epic and these dance classes deprive the creators of these
dances of their economic recognition? Are these “original works” being
performed by these dance classes or are they simply “ideas” which are unprotected
by copyright laws? I personally believe that due to viral internet culture or
even pop culture in general, that the plaintiffs here have a solid case and
that Epic Games exploited their dances to increase popularity and money for
their game. Given the competition with "Battle Royale Sensation" Player Unknown
Battlegrounds (commonly known as PUBG, pronounced PUB-G) and the then looming fear
of Black Ops 4’s Battle Royale game, it’s easy to see why Fortnite would want to appeal to viral and popular culture with the
use of popular dance moves and collaborations with Drake and Ninja. But, what
does copyright law have to say about this issue?
Applicable
Copyright Law:
In
general, copyright law applies to “any original work of authorship fixed in a
tangible medium of expression.” Simply stated, creating an original work and
putting it to paper, performing it on YouTube or TV, or any other “tangible medium
of expression” can allow one protection and exclusive rights under the
Copyright Act. These protections and exclusive rights include: the right to reproduce
the work in copies, the derivative right or right to create adaptations (ex:
the Harry Potter novels becoming movies), public distribution rights or right
to sell, lease, or otherwise transfer ownership of the work, the right to publicly
perform the work, and the right to publicly display the work.
The requirement of “originality” echoed in the above definition,
as set forth by the Supreme Court in Feist
Publications v. Rural Tel. Serv. Co., 499 U.S. 340, requires an “independent
creation” and a “minimal spark of creativity.” The independent creation
requirement simply states that the person had to have come up with the work by
themselves, not necessarily that they were the first to use it. And concerning the
“minimal spark of creativity” requirement, according to the Feist court, states that “the originality
requirement is not stringent, only that it is more than so mechanical or routine
as to require no creativity whatsoever.”
These
copyright rights and protections, however, are subject to an exception and a
few exclusions. The well-recognized exception to copyright protection known as “fair
use” is outlined in 17 U.S.C. § 107 of the act. With this exception, others may
use copyrighted works without permission or payment if it falls into one of the
categories: criticism, comment, news reporting, teaching, scholarship, or
research. As expressly stated in §102(b) of the Copyright Act, “ideas” and “processes”
are excluded from the exclusive copyright rights and protections. “Ideas” are
treated as separately from “creative expression” of those ideas under the law.
For example, having the idea for a short story or even texting a friend your short
story idea (putting it in writing), is not protected by the Copyright Act. In
contrast, if you write the short story out, then that is considered “creative
expression” of that idea and protected by the Copyright Act. Another illustration
of the exclusion is seen in the case of Bikram’s
Yoga College v. Evolution Yoga decided by the 9th circuit in 2015. This
case involved twenty-six yoga poses and two breathing exercises, known as “The
Sequence”, developed by Bikram and described in his 1979 book Bikram’s Beginning Yoga Class. The court
concluded that the Sequence is an idea, process, or system designed to improve
health. Further, they stated that copyright protects only the expression of
this idea - the words and pictures used to describe the Sequence (or expression
of the idea)- and not the idea of the Sequence itself. Because the Sequence is
an unprotectible idea, it is also ineligible for copyright protection as a
“compilation” or “choreographic work.”
Bringing it All Together:
Now
that we have all had a mini law lesson, how does all of this apply to the Fortnite cases? Simply stated, these
Plaintiffs (2Milly, Ribeiro, and BackPack Kid) can each show to some degree that
their dances were original – that they came up with the dance on their own and
that it wasn’t born out of a mechanical or routine movement. It also appears,
though not surprisingly, that the Plaintiffs can sufficiently prove that Fortnite does not fall into one of the “fair
use exception” categories outlined above. It’s hardly debatable that Fortnite’s use is far from any “educational
non-commercial use.” My little cousins may beg to differ, but those annoying Fortnite in-game dances are not teaching them anything useful. And further, unlike
the Sequence in Bikram, these dances
are not apart of the exclusions outlined above of “ideas” and “processes”
because they are not just simply the “idea” or written “process” of the “Milly
Rock, Carlton, and Floss” dances. Rather, these dances have been fully
performed (or creatively expressed) for millions of people around the world to
see. Considering all of this, it appears that the Plaintiffs may have a solid
case against Epic. The real battle may come down to who truly owns the dances or “copyrighted choreography”
(as the law calls it) as is often the issue with copyright of dances, choreography,
or pantomimes. However, that will be something determined by the court privileged
to oversee these cases should that issue arise. For now, looks as though Fortnite may have to pay out for the use
of these dances.
