Fortnite dance lawsuits cooling their heels

A group of lawsuits against Fortnite for allegedly using popular dance moves without the permission of their creators has been put on pause.

A recent U.S. Supreme Court ruling changed the process for when a copyright claim can be made.

Previously, if someone filed a copyright application with the Copyright Office, the claim was considered in effect as soon as that application was received. Now, however, the person who filed the application must wait until a determination has been made, something that can take months, Polygon explains.

As a refresher, Fortnite and its developer, Epic Games, were facing five lawsuits from different people who claim their dances were being used in the game without their permission. Among the people attempting to sue the game were Alfonso Ribeiro, aka Carlton from The Fresh Prince of Bel-Air, 2 Milly, and internet gifs-but-real-people James “BlocBoyJB” Baker and Russell “Backpack Kid” Horning.

“Our Fortnite and NBA 2K cases were filed under the previous standard, with our applications pending before the Copyright Office at the time we filed our lawsuits,” Pierce Bainbridge, the law firm suing on those clients’ behalf, said. “In fact, while artists like Backpack Kid and Orange Shirt Kid created their signature dances before filing suit, they only received copyright registrations afterwards. To best conform with the law as it stands in light of the Supreme Court decision, our clients will dismiss their current lawsuits and refile them. We will continue to vigorously fight for our clients’ rights against those who wrongly take their creations without permission and without compensation.”

The firm’s clients who have not yet received a copyright registration have withdrawn their original lawsuits and will re-file when those registrations are received, the firm said.

But wait, there’s more.

Last month, David Hecht, one of Pierce Bainbridge’s lead attorneys, learned that a fraudulent email was sent to the Copyright Office alleging fraudulent documents had been submitted in these cases.  The fake email asked any judges working on the case to reject them for containing false information.

The Copyright Office contacted Hecht about the email.

“Within minutes, the firm alerted the authorities, including the Federal Bureau of Investigations,” the firm said in a press release. The day after Hecht contacted Washington officials, he was notified that another forged inquiry had been submitted.

“While our clients have overwhelmingly received strong support from the public in pursuing fair and reasonable compensation — and proper recognition — for their misappropriated likeness and infringed works, an uninformed minority fails to understand the importance of these cases and apparently seeks to subvert them,” Hecht said, reiterating that his clients’ works are eligible for copyright protection under the law.

But there’s a question there as well.

Endgadget reports that at least one of the cases might have hit some other turbulence.

The copyright application filed by Ribeiro for the “Carlton Dance,” which is called “Fresh” in Fortnite, was denied for being “a simple dance routine,” which does not qualify for copyright protection.

“If basic motions were copyrightable, nobody would be able to walk down the street without facing a potential lawsuit,” the article says. To boot, Ribeiro previously admitted the dance was inspired by other people’s work.

A full list of dances included in Fortnite that might fall into a copyright grey zone can be found here.

Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

One thought on “Fortnite dance lawsuits cooling their heels

  • March 12, 2019 at 8:17 am
    Permalink

    Exactly! How can you copywrite a dance move?

    Reply

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