Can You Copyright a Dance Move? The 'Fortnite' Lawsuits, Explained

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A man plays Fortnite game on a smartphone in Ankara, Turkey on Nov. 26, 2018. 

Epic Games took chances on dances; Rapper 2 Milly, 'Fresh Prince' star Alfonso Ribeiro and Russell 'Backpack Kid' Horning have all filed suit so far.

Who owns "The Carlton?" What about the Milly Rock? Everyone from your granny to your two year-old niece has done the Backpack Kid "Floss" dance, but does the Kid have the exclusive on that?

Those questions are at the center of four lawsuits recently filed against Epic Games, creators of the hugely popular video game Fortnite. The four suits, filed on behalf of, respectively, former Fresh Prince of Bel-Air star Alfonso Ribeiro, rapper 2 Milly and 16 year-old viral sensation Russell "Backpack Kid" Horning by the same law firm, Pierce Bainbridge Beck Price & Hecht, LLP, are testing that question.

"A 'choreographic work,' which is what copyright laws calls it, is protected by copyright," Mark Jaffe, a copyright expert and managing partner at TorMark Law LLP, tells Billboard. Jaffe, who spoke as an expert with no firsthand knowledge of the cases, explains that "an extended series of dance moves that is original to its creator can be protected by copyright. There's no doubt, not controversy about that, that's explicit in the copyright act." What's less common is copyright lawsuits over choreographic works.

Over the past two weeks, however, three lawsuits have been filed against Epic over the $1 billion videogame, including one on behalf of Anita Redd, mother of Horning, whose suit claims that the "Floss" -- used after a character wins a battle -- was included in the game without her son's permission, and with no compensation. Ribeiro has filed two different suits, against both Fortnite and Take Two Interactive's NBA 2K over the use of the dance he made famous on Fresh Prince and rapper 2 Milly is also in line over claims that the gamemakers borrowed his signature "Milly Rock" dance without compensation. A spokesperson for Epic Games had not returned requests for comment at press time.

While dance routines can be copywritten, a single, simple or common move cannot be, says Jaffe. In fact, the U.S. Copyright Office issued a guidance in 2017 saying that you cannot register "short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive." Among the moves that would not qualify under that rule are "a set of movements whereby a group of people spell out letters with their arms, yoga positions [and] a celebratory end zone dance move or athletic victory gesture." 

One challenge of the suits, Jaffe says, is that even if someone can be proven to have invented a routine or been the first one to do it, and even if that move takes "considerable skill or physical prowess or athleticism," or if that person has come to be associated with that move, it's possible that the moves will be deemed to be "too simple" to qualify for copyright protection. While Horning has popularized his dance in viral videos, as well as on SNL alongside Katy Perry, in Ribeiro's case, he recently said on camera that he "stole" his routine from actress Courteney Cox's moves in Bruce Springsteen's 1984 "Dancing in the Dark" video and comedian Eddie Murphy's movements on stage.

Ribeiro's lawyer told NBC News that his client was not using the word "stole" in a legal sense, and that he "created the dance by expressing his own interpretation of a combination of several ideas, resulting in a new, original and copyrightable choreographic work." Ribeiro has clearly made it his signature, even using it during his winning run on 2014's Dancing with the Stars. Similarly, 2 Milly is known for his namesake dance, and, according to Newsweek, all three men are in the process of copyrighting their dance moves.

A spokesperson for Horning pointed Billboard to an Instagram post from Tuesday (Nov. 18), in which the teen wrote "I'm just a teen having fun in life, leave all that other stuff to the adults and management." A spokesperson for Pierce Bainbridge had not responded to requests for comment at press time.

"My dance is my signature," 2 Milly (born Terrence Ferguson), recently told Rolling Stone. "Everybody would tell you, from here to Alaska, 'Hey, that's the Milly Rock.' I don't mind people doing it in their videos. What I mind is when somebody takes what I created and sells it."

So why file such a lawsuit if the copyrights are not yet in hand, and it's unclear if the three can prove they invented the moves in the game played by more than 200 million globally?

"In any civil lawsuit there are two big picture things to think about: one is people are outraged and hurt because they were wronged and second they're looking to cash in," says Jaffe, adding that there is "little doubt" that the game lifts dances from other sources and that the game maker cannot claim to be the originators of the moves. He says it's worth noting that copyright protection itself doesn't require the claimant to have a registered copyright in hand at the time of a lawsuit; in fact, he says there's a case currently pending at the Supreme Court over this very issue, whether it is sufficient to have simply submitted paperwork for a copyright before filing a suit or whether the claimant must have the copyright registration in hand first.

The best case scenario, he says, is that Epic might decide to settle and pay out the three, or, more likely, they will ask a judge to dismiss the cases on the grounds that the dances are too simple to be protected by copyright law, with additional questions about whether any of the plaintiffs can definitively prove ownership. In Ribeiro's case, he was a character on an NBC show where he likely signed a work-for-hire agreement with a production company, which further muddies the waters of ownership. Of the three, Jaffe says 2 Milly likely has the strongest case for claiming that the namesake dance was his creation. 

There's no doubt that many, if not most, of the signature dances in the game were borrowed, or copied from existing moves, as evidenced by the many YouTube videos that juxtapose the Fortnite moves with their inspirations. From the Avengers-like "Snap" to the Fred Astaire-inspired "Click," the Snoop-looking "Tidy" and the Seinfeldian "Jubilation," it seems clear that the game's makers took ample inspiration from existing routines, as well as including a handful of original looped, animated dance moves used to taunt adversaries or celebrate a win.

As for why would Epic take the chance and so brazenly include the "emotes" (as the dances are called) if there was even a chance they might get sued? "They might feel they are on strong legal ground and even if there are dozens of suits all you need is one motion to dismiss," says Jaffe. "In retrospect, maybe they ought to have not done it. They are suffering [bad] publicity from it and can't hide that they are lifting the dances. Some people just like to take chances."