Fortnite Dances Its Way Into More Lawsuits

Advertising Law

Popular video game Fortnite has yielded another new trend: lawsuits against Epic Games for allegedly stealing famous dance routines for use in the game.

First was Terrence Ferguson, better known as rapper 2 Milly, who claimed that his “Milly Rock” dance was nabbed for the game’s “Swipe It” emote.

He was followed by “Backpack Kid,” the boy who made flossing go viral after appearing on Saturday Night Live in May 2017 alongside Katy Perry. Although Georgia-based Russell Horning began gaining popularity in 2016 when he started posting online videos of his signature move, he became a household name after his SNL performance and appearance in a Katy Perry video.

“The Floss has become synonymous with Backpack Kid, who is unanimously credited with creating the dance,” according to the California federal court complaint, noting that Horning has filed for copyright and trademark protection for the dance.

As a free-to-play game, Fortnite makes its money from in-game purchases and charges players for “emotes” and dance moves, Horning told the court. After flossing became a hit, the defendant added the “Floss” emote, a dance “identical” to flossing, the plaintiff said.

“Epic added the Floss emote to intentionally exploit the popularity of Backpack Kid and the Floss dance without providing Plaintiffs any form of compensation,” Horning alleged, and Epic thereby created the false impression that it started the dance or that Backpack Kid endorsed the game.

Joining 2 Milly and Horning, Alfonso Ribeiro accused Epic of ripping off his signature move, “The Carlton,” with the game’s “Fresh” dance emote. Ribeiro—a self-described “internally famous Hollywood star”—created and debuted the dance in a 1991 episode of The Fresh Prince of Bel-Air. Twenty-seven years later, the dance “remains distinctive, immediately recognizable and inextricably linked to Ribeiro’s identity, celebrity and likeness,” he alleged in his lawsuit.

While making claims similar to the other two plaintiffs’, Ribeiro added that Epic “has consistently sought to exploit African-American talent, in particular in Fortnite, by copying their dances and movements and sell[ing] them through emotes,” listing other examples such as Snoop Dogg and Donald Faison.

All three of the lawsuits seek monetary damages (including punitives) and orders restraining the defendant from advertising, promoting, marketing, selling, using, or displaying the plaintiffs’ likenesses and dance moves.

To read the complaint in Redd v. Epic Games, Inc., click here.

To read the complaint in Ribeiro v. Epic Games, Inc., click here.

Why it matters: Fortnite’s record-breaking success (with sales in excess of $1 billion and earnings of $318 million in May 2018 alone) makes it a popular target, but the plaintiffs will be challenged to establish that their dance moves are entitled to legal protection. Guidance from the Copyright Office states that “social dance steps” and “short dance routines consisting of only a few movements or steps with minor lineal or spatial variations, even if a routine is novel or distinctive,” are not entitled to copyright registration, which could mean game over for the plaintiffs.