Fortnite Lawsuits Put on Ice for the Foreseeable Future
Fortnite Battle Royale has become a global phenomenon. It’s toys, clothes, license plates. Fortnite has become a brand. This shooting star-like fame comes in no small part to the myriad of dance emotes. Those emotes have also brought a lot of flak to Epic Games, as many of them are appropriated versions of dances created and popularized by actual artists.
That said, i’m sure there are a few out there who may not have been keeping up with all the legal storm Epic Games has been caught up in, so here's a quick rundown:
It initially gained traction when hip hop and rap artists Chancelor "Chance the Rapper" Bennett and Terrence "2 Milly" Ferguson took to social media to ask Epic to give some sort of compensation to the artists who originated those dances. When more and more people's names became known from their dance making an appearance in Fortnite, that was when some felt it was time to take the matter to the courthouse.
To date, five lawsuits had been filed against Epic over the use of their dance moves: 2 Milly, “Orange Shirt Kid,” James “BlocBoy JB” Baker, and Russell “Backpack Kid” Horning and most notably, Alfonso Ribeiro, best known for his portrayal of Carlton Banks from The Fresh Prince of Bel-Air. Ribeiro had a lawsuit against Epic over his signature "Carlton" dance. Though it had looked like Ribeiro's case, at least, might have had a chance to gain some traction in court, it seems now that all of those lawsuits have been dismissed, at least in the short run.
Earlier this month, a Supreme Court ruling declared in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. Via Jdsupra.com
“A party may sue for copyright infringement only after the Copyright Office registers the copyright, not when the party has merely submitted an application for registration. The Court also held that once the copyright is registered, the copyright holder can sue and recover for infringement that occurred both before and after the registration.
This ruling is very interesting because it could mean that if any of these artists or creatives could get copyrights for their dance, they could, in theory, have royalties coming to them not only from here on, but they could also hit up Epic for what they would have been owed from whenever these dances were introduced. As it stands, however, it would seem all five lawsuits were dropped because this new ruling also deems that a copyright infringement suit can only be filed after the copyright has been obtained.
Pierce Bainbridge Beck Price & Hecht was the law firm that was representing all of these cases. They expect this ruling could slow progress on each of these cases significantly, stating
“Previously, plaintiffs could file copyright infringement lawsuits as soon as they applied for a registration with the Copyright Office. Now, plaintiffs have to wait for the Copyright Office to act on that application before filing suit, which, as a result of its backlog, can sometimes take many months.”
We will continue to vigorously fight for our clients' rights against those who wrongly take their creations without permission and without compensation."
It seems they are still confident that their plaintiffs have a case,even though chances are looking slimmer and slimmer. Late last month, The US Copyright House declined to grant Ribeiro a copyright for his signature “Carlton” dance, reasoning that “The combination of these three dance steps is a simple routine that is not registrable as a choreographic work “ If Ribeiro was denied, it is difficult to imagine the others having a shot at this.
Still, this is an important thing to many artists out there. Having your dance moves, simple or not, taken and used without your knowledge or permission has been a problem for many people for years, most prominently young, black creatives. It remains to be seen whether this will have any effect on Fortnite or Epic Games as a whole, but I hope this helps push forward protections for artists and creatives going forward.
