Most of us are exposed to Fortnite even if we’re not aware of it. Its massive popularity alone – having a player base of over 250 million – makes it logistically difficult to avoid. Whilst Fortnite has sparred in the copyright arena previously, a particularly interesting controversy arose in late 2018 in respect of some dances featured in the game, which I recently discussed at a Learning on Screen event on “Using Other People’s Stuff” at the V&A Museum, Dundee.
To give a little background to this issue, Fortnite (published by Epic Games) operates with a seemingly oxymoronic business model; it’s completely free to download and play, yet manages to be massively profitable (earning Epic games millions of dollars a day). This is achieved through the (increasingly contentious) use of microtransactions – low-value, in-game purchases ranging from a few pounds to approx. £20 for larger add-ons. Some of these microtransactions involve the purchase of dance “emotes” (ranging from about £3-£4 each), which have achieved their own fame in the cultural zeitgeist. No doubt many readers will be familiar with “The Floss”, which found its place in meme culture having been popularised by Fortnite.
However, and as emerged in late-2018, many of these dances had been copied from other artists – without permission, without payment, and without acknowledgement. Naturally, this rose to accusations of copyright infringement, with some of the higher-profile accusers being Alfonso Ribiero (Carlton, Fresh Prince of Belair), 2 Milly (rap artist) and Donald Faison (Dr. Turk, Scrubs).
There is a bit of a thorny legal question here: is it possible to copyright a dance move? As a general rule, we recognise that simple, mechanical gestures (such as the moonwalk, the hustle step, or the waltz), regardless of how innovative, can’t be protected. These types of dance moves essentially act as the “building blocks” to something bigger – namely the full dance routine. Monopolising these building blocks would simply be too restrictive. However, in the UK we recognise that a “dance” can be protected as a copyrightable work (the US equivalent being “choreography”), but as to what exactly a “dance” is we’re left in the dark. At best, we might agree (though there is some debate) that this is a more complex formula composed of several of the dance move building blocks (e.g. moonwalk + hustle step + waltz).
With these requirements in mind, are any of the alleged infringing dances actually copyrightable? It’s possible we’re looking at a bit of a mixed bag, but already Alfonso Ribiero’s dance has been denied registration at the Copyright Office in the US on account of being “too simple” (e.g. a building block). Other litigants, such as 2 Milly, may suffer the same fate. Yet, settlements have reportedly already occurred where the replicated dance is clearly choreography, such as Gabby J David’s “Electro Shuffle”. No doubt discerning the line between a simple dance move and a more complex dramatic work/choreography will lead to some interesting legal reasoning - but already the standard for protection has been set quite high.
However, in many ways this is not the most important aspect of this controversy. Indeed, it’s possible that the Fortnite dancing debate isn’t about copyright at all. After all, copying of dance moves from popular culture is nothing new to the world of games; Overwatch, Forza Motorsport 4, Destiny and Uncharted 4 (to name but a few) are all guilty of this (using, in fact, some of the same dances as Fortnite). So why has Fortnite been targeted so specifically?
There are potentially a few factors at play here, but perhaps the most significant is the lack of attribution paid to the original dance artist. Whilst the US doesn’t compel attribution for copyrighted works (and that’s assuming any of the dances are in fact copyrightable), this has still put Epic Games in some dangerous territory. This lack of attribution has in some cases resulted in false attribution. Have a look at this video of kids seeing Snoop Dogg for the first time where, quite notoriously, at 3:07 they immediately recognise the “Drop it like it’s hot” dance as being “Fortnite!”.
More so than this, a lack of attribution has led to accusations of cultural misappropriation. Both Chance Owbum and 2 Milly claimed that Epic Games (knowingly or unknowingly) targeted black artists’ dances, rebranded them as “Fortnite dances”, and monetised them. This behaviour has a particularly charged past in the US, where the relationships between dance and race have historically been highly egregious. Consider how American Bandstand, whilst effectively banning black dancers from participating in their shows, forbade their white dancers from admitting that black dancers were responsible for creating and teaching many of the featured dances. Or that the Lindy Hop, a dance popularised by black youths in Harlem, came to be manipulated and monetised for white consumption. Consider the cakewalk and its ties to minstrel shows, or as a more recent example Miley Cyrus’s prolific twerking. The list goes on.
Based on this fraught relationship, it seems like the Fortnite dance controversy is a case of being on the right side of the law, but the wrong side of ethical reuse. It’s entirely possible (and probable) that Epic Games will successfully defend itself against every copyright claim that comes its way in respect of the Fortnite dances. It’s also entirely possible that they have contributed to the cultural misappropriation and erasure of the talent of black artists.
Attribution is such a simple but overlooked facet of reusing content – especially in grey areas of copyright - but it has important implications. Think how differently these dances may have been perceived if players were able to locate the original artist, purchase their music, or watch their videos. To be clear, it’s not a bad thing to share and borrow aspects of other cultures – but exactly how this is done matters an awful lot when it comes to respectful, ethical reuse (and sometimes simply complying with copyright is not enough!).
About the Author
Amy Thomas is a PhD candidate at the University of Glasgow (collaborative scholarship with CREATe and CMS Cameron McKenna Nabarro Olswang LLP), and a research assistant with CREATe UK Copyright & Creative Economy Centre. Alongside her doctoral research, she also has a keen interest in copyright aspects of video games and eSports, acts as the sub-editor for the Copyright Evidence Wiki, and has taught at both the University of Glasgow and the University of Strathclyde.
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