Thread by @senamisomoyo

Welcome to another edition of #IPThursday good people. This week we’re going through the battle between Epic Games’ Fortnite and several artists including the owners of the Milly Rock, the Carlton dance and the Floss.

Question: Are dance moves protected by Copyright?

As usual, we gotta start at the very beginning. In 1991 Tim Sweeney founded the company Potomac Computer Systems. At the time Sweeney was a student at Maryland University in the USA.

The idea was for this to become a computer consulting company, however he ditched this idea soon thereafter and he decided to focus on making video games.

He made his first game called ZZT in October 1991 and it was a commercial success. Soon thereafter he decided to really go in on the video game industry. The following year, he came up with the company Epic MegaGames. Sidenote: who remembers floppy disks?

They made some cool games in the 90s. The best one was the shooter game “Unreal”. It was critically acclaimed and peaked at 2nd behind “Starcraft”.

Over the years, Epic MegaGames grew to become one of the best gaming companies worldwide, but not necessarily the biggest. So in 1999 they dropped the word “Mega” from their brand and went with Epic Games.

They also had huge success with the game Gears of War in 2006, however, in the years after this they were working on “something special”.

In 2011, Epic wanted to combine different game genres such as the construction game genre, which has games like Minecraft and shooter games. The game was to be called “Fortnite”.

I won’t bore you with the geek stuff because I really don’t understand it either! 😂 But in short, there were looong delays in releasing Fortnite due to technical issues. Including switching their games from a dark theme to a more fun “cartoon style”(this will be important later)

Fortnite was released in 2017 and I can safely say that I have never played it before, and this makes me feel old! Its been released in 3 different game modes, Fortnite: Save The World, Fortnite Battle Royal and Fortnite Creative. All 3 modes have been a huge success.

Fortnite had one million players within the first 3 months and it made almost $3 billion in 2018 alone. Kids everywhere quickly became addicted to it. Why not?! It had really cool gameplay and its available on all your devices.

Fortnite is free to use. So which begs the question. How does Epic Games make money from it you may ask? 🤔 Well, it makes money through in-game purchases.

Well, it makes money through in-game purchases. One of the features Epic brought into the game to make it more fun and “cartoon-like” was the ability for the user to buy (at a price) dances, gestures and costumes for their characters.

The concept is easy, you have a character, and if you want your character to do cool stuff like dance in the game, you can buy that feature. They are called “emotes”. For example, if you kill an opponent, you can use an emote to celebrate your win by dancing....I think

Different games use this in different ways. For example, Fifa allows you to unlock real life player celebrations. It makes the user experience all the more amazing!

My Chess app has been trying to get me to buy new “board themes and designs” for years now, but I’m a cheapskate so I’m still using the normal basic design.

Anyways, the players can buy different things in-game and often these features are based on cool real life things (ie. A moonwalk). This presents an obvious problem, an Intellectual Property problem.....

Upon rolling out these features, Fortnite faced a lot of criticism from artists. @chancetherapper was one of the first to voice his. He was upset that Fortnite had monetized works made by creatives without paying them.

What followed Fortnite thereafter, were IP infringement claims, about 7 in total but 3 which were very popular and similar. The lawsuits came in quick succession and the plaintiffs were represented by the same firm. I’ll unpack some of them here....

The first was from a rapper called Terrence Ferguson, but you probably know him as “2 Milly”. He rose to fame in 2015 when he released the song “Milly Rock” with a really cool dance to go with it.

The dance went viral, and its really what made the song very popular. When 2 Milly saw that Fortnite had been selling his dance to gamers, he was a bit upset. And the people were on his side.

Up next was the “backpack kid”, he was famous for creating “the floss”. It took me a whole year plus intense training from my little sister to master this. Safe to say I’m a pro now and I have videos to prove it 😎.

The 3rd was Alfonso Ribeiro, you probably know him as Carlton from “The Fresh Prince of Bel Air.” Carlton first did the dance in the season 2 episode “Christmas Show”.

Ribeiro said that his intention was to do a “white man dance” and he came up with it. Drawing some inspiration from Courtney Cox, Eddie Murphy and Bruce Springsteen.

I’m really not sure if a White Man can dance that well. 😂😂😂. I think we can all agree on that. Anyways, the dance became his “trade mark” for years after that. Even after the Fresh Prince stopped airing in 1996, people still ask him to do it.

All 3 found out that their dances had been used as emotes that users can buy on Fortnite as well.

They weren’t the only ones, actor Donald Faison from Scrubs also said that Epic Games stole the dance he created on the show Scrubs and started selling it.

The lawsuits are similar in that all allege that Epic Games is guilty of 1. Copyright Infringement (Making money off their creative works, which are protected by IP)

2. Publicity rights violations (Taking advantage of their popularity and fame to make money)

3. Unfair competition (They have given the impression that 2-Milly/Ribeiro gave them consent to use the dances)

cred:questmeansbusiness

Epic Games hit back at the lawsuits by saying that dance moves are not protectable by Copyright. They even claimed that the Milly Rock is a simple dance routine thats not in any way creative.

During this period, @alfonso_ribeiro also sued the company Take Two Interactive for the same thing. You may know Take Two, they’re the ones that make the NBA 2k games. In 2K, players are able to celebrate with the Carlton dance.

So Ribeiro did what all of us should try to do in such a scenarios, register the dance with the US Copyright Office. However, the Copyright Office refused his application to register the Carlton Dance. They said that the “combination of the dance steps is a simple routine.....

.... that is not registrable as a choreographic work”.

Ribeiro then withdrew his lawsuit for the “Carlton Dance” against both Epic Games for Fortnite and Take Two Interactive for NBA. 2 Milly did the same, however, their lawyers say this is just a formality and they will soon bring back the suits (if they haven’t already!)

So the big question is should dance moves be protected by Copyright? For me, yes. As long as it meets the 2 main requirements for Copyright protection a) Original b) Expressed in Material Form (you can do this by recording a video, or writing down the steps with pictures).

The difficult thing here seems to be proving that dance moves are in fact original. Remember, Original in Copyright Law doesn’t mean new, but it means you’ve really “sweated” to come up with the work of art. Which is hard to do with dance.

For your dance move to be protected by Copyright, it would have to be amazing. For example, Halloween is coming and thousands around the world will dress up like Michael Jackson and do the Thriller, Beat It or Smooth Criminal dance routines....

MJ was probably the greatest dancer in music, ever. You can spot a Michael Jackson dance imitation from a mile away. However, I’m not sure if the King of Pop ever pursued lawsuits for people using his dance moves in movies....in my view, he should have!

He wouldn’t be able to get protection for the moonwalk because that existed decades before MJ made it famous in 1983.

This is a hard debate and I’d like to hear your thoughts!

My view: It doesn’t feel right that gaming companies are making a lot of money money off the creative works of other people. Maybe we need to make it easier to protect other creative works?

Big Lesson: Dance moves are difficult to protect for many reasons, I couldn’t go through all of them here. But it may be worthwhile to record yourself doing your dance when you make it, or write down the steps. Make sure people know its your IP!!❤️💛💚