As more and more people start to sue Epic Games for allegedly stealing dances, it’s important to ask: Can they even do that?
By Tom Marks
A fourth high-profile lawsuit has been filed against Epic Games this week over the studio allegedly stealing a dance emote in Fortnite. Rapper 2 Milly sued back at the start of December, followed by Fresh Prince star Alfonso Ribeiro and the notorious “Backpack Kid” a few weeks later, and now the mother of “Orange Shirt Kid” is joining to accuse Epic of wrongfully taking her son’s dance.
As these lawsuits start to pile up, there’s an important question to ask: Can you actually copyright a dance, and can Epic be sued for taking one? The answer to most of the cases so far appears to likely be “not really,” but, like the US legal system, it’s messier than that. While dances and choreographed routines can be protected by US copyright law (and you can trademark the actual name of a dance), individual dance moves themselves aren’t protected on their own.
That means Ribeiro’s “Carlton” dance, which has multiple moves in sequence, might have a stronger case against Epic than Backpack Kids’ Floss dance, which many have pointed out is a move that predates his viral fame by years – as you can imagine, who actually owns the rights to a dance is a muddled but important part of who gets to sue for it.
Regardless of the legality, there is a separate ethical question to consider too.
Backpack Kid didn’t create the Floss dance, similar to how the Carlton was a mix of moves from other sources. That ownership issue gets even murkier when you consider that Orange Shirt Kid actually submitted his dance to a contest with the explicit purpose of having it be added to Fortnite, and potentially waived rights to it while doing so.
While it didn’t result in a lawsuit, Scrubs star Donald Faison said back November that Epic had taken his “Poison” dance from the show for an emote. While Faison seemed upset about it, Scrubs creator Bill Lawrence said that Epic had in fact reached out to him about including the dance, indicating Epic has been covering its bases in that regard for at least some of the dances they’ve used – but, again, in the eyes of US copyright law, it’s not totally clear if that dance belonged to Faison or the show itself in the first place, so who would even have the right to sue?
Faison’s dance was at least a sequence of multiple moves, which could be why Epic was more careful about using it – though it’s not public how many of these dances it’s actually done that for. Fortnite taking a single move like the Floss dance from Backpack Kid (completely removed from the dubious claims around its ownership) or 2 Milly’s “Milly Rock” without permission seems less likely to have legal ramifications for Epic, but the actual outcomes of the litigation remain to be seen.
Regardless of the legality of all this, there is a separate ethical question to consider here too. Even if Epic is fully within its legal rights to use these individual dance moves in Fortnite, they are still allegedly using the creative work of others without giving proper credit or compensation in most cases. Even if the lawsuits won’t legally hold up, Epic might want to think harder in the future before looking to the latest viral dance craze for emote material.
Fortnite should put the actual rap songs behind the dances that make so much money as Emotes. Black creatives created and popularized these dances but never monetized them. Imagine the money people are spending on these Emotes being shared with the artists that made them
— Chance The Rapper (@chancetherapper) July 13, 2018
Important note: I am not a lawyer or a copyright expert! While I did enough research on this to feel confident with everything explained above, the actual inner workings of the US legal system are complex and complicated and I easily could be missing something. Please don’t take this as immutable legal advice, and consult actual counsel if you are thinking of lawyering up against Epic.
Tom Marks is IGN’s PC Editor and pie maker. You can follow him on Twitter.