In context: If you have been following our coverage, you know that Epic Games is facing a storm of lawsuits related to its dance emotes. It started when the rapper 2 Milly filed a copyright claim saying that the studio was profiting off his dance move the “Milly Rock.”
The initial lawsuit by 2 Milly seemed to spark a deluge of similar complaints. Fellow rapper BlocBoy JB is suing. Two juveniles commonly known as Orange Shirt Kid and Backpack Kid, with the help and coaxing of their parents, have also jumped onto the dog pile wanting a slice of Epic's lucrative Fortnite pie.
More notably than most would have to be Alfonso Ribeiro’s case stating that he is owed money for the “Carlton Dance,” which he originally performed on the television show The Fresh Prince of Bel-Air. Epic mimicked the iconic dance and gave it the not-so-original name “Fresh.”
Documents from the US Copyright Office, uncovered by The Hollywood Reporter, revealed that the registrar denied issuance of copyright to Ribeiro for his dance moves. This decision should not come as a surprise if you’ve been reading along.
Like Ribeiro, 2 Milly was also applying for copyright protection after the fact. As we reported at the time, the USCO’s guidelines for copyrighting dance moves are very clear.
“To qualify for registration, a choreographic work or pantomime must be fixed in a tangible medium of expression in such a way that reveals the movements in sufficient detail to permit the work to be performed in a consistent and uniform manner. Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. The U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”
Therefore, the few moves that make up the “Carlton,” “Milly Rock,” or any of the other brief dances that Epic has “stolen” cannot be copyrighted.
Ribeiro’s lawsuit was iffy even were his moves able to be copyrighted. For one, his dance is not all that original. In fact, in 2015 he admitted that his jig was based on moves by Eddie Murphy and the nervous dance Courtney Cox did in Bruce Springsteen's “Dancing in the Dark” video. Furthermore, since Ribeiro performed the steps while employed by NBC and during the course of his work on the show, that would make NBC the copyright owner, not him.
While his copyright protection request has been squashed, his lawsuit has not been settled yet, but it does not look good. Earlier this week Kotaku reported that Epic has asked for a dismissal of 2 Milly’s complaint. It argues that the moves are too short to copyright. The USCO denial of Ribeiro’s request would seem to support that reasoning. Lawyers add that the “Swipe” emote is also different enough from the Milly Rock to avoid infringement.
It will be interesting to see how the courts rule on all these cases, but I think that once one of them goes down the rest will fall in short order.