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Claims against Fortnite allege violation of rights in dance moves

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Three celebrities have filed lawsuits against Epic Games, the creator of the wildly popular video game Fortnite, for allegedly using their signature dance sequences in the game without their permission and without giving them credit, reports The Washington Post. The suits bring claims for copyright infringement, violation of their rights of publicity and unfair competition.

 

In the game, players can earn or buy “victory-dance ‘emotes’” to “customize their avatars.” The three plaintiffs object to the use of dance moves that have become associated with them personally and professionally: 

  • Alfonso Ribeiro’s “Carlton dance” from his role on “The Fresh Prince of Bel-Air”
  • Russell Horning, known as the Backpack Kid, for his unique dance moves dubbed “The Floss”
  • Terrence Ferguson, known professionally as 2 Milly, for the “Milly Rock” from his 2014 music video 

Copyright in choreography 

According to the article, the plaintiffs have said they are “in the process of copyrighting their moves.” Dance choreography can be copyrighted, but the legal requirements are quite specific. The U.S. Copyright Office defines copyrightable choreography as “the composition and arrangement of a related series of dance movement and patterns organized into a coherent whole.” 

The Journal article raises questions about whether the short sequences that make up the dance moves in dispute are substantial enough to meet copyright standards, which do not protect brief gestures or, as one quoted expert says, “end-zone dance moves or yoga positions.” 

Right of publicity 

The same expert feels the plaintiffs have a “better shot” at the right of publicity claim, which involves the legal right to protect the use of someone’s persona without permission such as their name, likeness or voice. 

CNET has also published an article about these lawsuits in which it reproduces the original complaints of Ribeiro and Horning. The complaints state that Epic has had sales of more than $1 billion related to Fortnite. The plaintiffs seek their share of these profits based on the alleged misappropriation of their dances. They also ask for an injunction to stop the use of their respective dance avatars and for damages, punitive damages, and legal fees and costs.   

 

 

 

 

 

 

 

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