While Fortnite Battle Royale throws concerts and prepares for Fortnite Season 8, the lawsuits against developers Epic Games that claim they copied various dance for their unlockable emotes rumble on. One of the litigants has suffered a setback though, as Alfonso Ribeiro was denied copyright for the famous ‘Carlton dance’. It doesn’t scupper anything entirely, but it does seem to throw a wrench in.
The main reason for the copyright being denied, according to a filing obtained by the Hollywood Reporter, is that it constitutes “a simple routine.” In other words, it doesn’t reach the necessary standard of choreography for the law to apply.
“Social dances, simple routines, and other uncopyrightable movements are not “choreographic works” under…the Copyright Act,” it reads. “As such, they cannot be registered, even if they contain a substantial amount of original, creative expression.”
According to the courts, it’s also not clear whether Alfonso Ribeiro could be granted any copyright anyway, because he may not be its sole author, or because it may belong to the TV network it originally performed on.
This is good news for Epic Games, who are using it to argue that the case against them and their emote, Fresh, “should be dismissed.” That hasn’t happened yet however, so Ribeiro’s lawsuit isn’t over. It’s possible that the lawyers involved knew that copyrighting the move was a long shot anyway, and are simply hoping for a cash settlement from Epic Games.
Epic Games also recently filed a motion to dismiss the similar lawsuit brought by rapper 2 Milly. In the document, again posted by the Hollywood Reporter, they claim that ‘Swipe It,’ the emote in question, is not only uncopyrightable due to its simple nature, but it’s not even the same as 2 Milly’s Milly Rock. 2 Milly has also argued that it constitutes his likeness being used in the game without his permission, to which Epic say, nonsense, because “he has not fought in a battle royale using weapons to kill opponents.” It’s transformative, see, because the emote is part of a big murderfest, and 2 Milly’s never been part of a big murderfest.
Still, it does seem like Epic could have avoided this whole problem in the first place by asking those associated with the dances for permission, and maybe sharing some of the money Epic make by selling dance emotes. Legality and morality aren’t always the same, after all, and there’s a whole lot more depth to that than just what the Copyright Act says. Yussef Cole recently wrote a wonderfully detailed piece at Waypoint about the historical and racial context of plucking these dances from their source material, as well as what’s lost in the process.
But it’s legality – and the money associated with it – that talks, so at the moment it seems like you’ll probably still be able to use Fresh and Swipe It to your heart’s content in between kills.
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