The wildly popular video game "Fortnite" has - in its first year of release - brought millions together as an online gaming sensation. It has also led rapper 2 Milly, a 1990s sitcom character, and the creator of the "Flossing" dance to sue gamemaker Epic Games Inc. for using their moves without permission.

The lawsuits involve questions over whether seconds-long dance moves should be entitled to copyright protection, or are so closely associated with a particular individual that a right to control how an image is used in commerce, known as a "right of publicity," can be violated even if actual images aren't used.

The "Fortnite" Suits  

In December 2018, 2 Milly sued Epic Games for copying, renaming and selling his Milly Rock dance move to "Fortnite" players who can buy and prompt their characters to perform the move. Actor Alfonso Ribeiro, known for his role as Carlton on the 1990s TV show "The Fresh Prince of Bel-Air," and Russell Horning, creator of the viral dance move "Flossing," have since also sued. 

Speaking with Bloomberg Law, Robert deBrauwere, Co-Chair of Pryor Cashman's Digital Media Group, explained that, in weighing the right of publicity claims, one question the courts will consider is if Epic Games' use of the dance moves amounts to a permissible, transformative expression of art.  

The copyright claims, on the other hand, touch upon a somewhat murky area of the law. While choreography is protected under copyright law, individual moves generally are not. The key issue is whether the works are original and contain a minimal amount of creativity as to warrant protection. 

deBrauwere also questioned whether the actor who played Carlton actually owned the dance moves, or if they belonged to the owner of the TV show's copyright. Still, Ribeiro could argue that the well-known dance is strongly associated with him, deBrauwere said.

deBrauwere went on to explain that the artists in the "Fortnite" cases could argue that "the dance is not integral to the artistic expression. I'd say it's advertising or trade, it's commerce," but Epic Games could defend their use of the moves as artistic since it "creates element of dance, of fancifulness."

Originally published by Bloomberg Law

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