In the midst of three copyright infringement suits against Epic Games, creator of the celebrated Fortnite video game, the Supreme Court has announced a groundbreaking decision that has put all such litigation on hold.
On March 4, SCOTUS unanimously ruled that copyright infringement suits cannot be filed until a copyright is registered. In light of this decision, countless artists and entertainers will be prevented from bringing suits, including Fresh Prince of Bel-Air actor Alfonso Ribeiro, rapper 2 Milly, and internet personality Backpack Kid.
Each entertainer, all of whom are represented by Pierce Bainbridge, filed a claim asserting that Epic Games had unlawfully profited from their original choreography. They took issue with a feature in Fortnite that enables players to purchase new dance moves (called “emotes”) for their avatar—dance moves that the complainants allege are markedly similar to their own. Fortnite’s in-game purchases racked up $2.4 billion in profit for Epic Games in 2018 alone, so the stakes are high when it comes to questions regarding compensation. Despite the similarities between the artists’ dance moves and those featured in the game, none of the three entertainers have secured copyright registrations on their dances, which means that their pending lawsuits must now be dismissed until such registration is secured.
While the entertainers plan on refiling their suits, they may still face a steep uphill legal battle in light of current regulations governing the copyright of choreography. The US Copyright Office weighs many factors when assessing whether a dance can be copyrighted, such as whether the moves constitute “a series of patterns organized into an integrated, coherent, and expressive compositional whole.” The problem is, the routines that the entertainers allege they created (see Riberio’s “The Carlton”; Horning’s “The Floss”; and 2 Milly’s “Milly Rock”) are short dances, some of which are made up of one move as opposed to a series of distinct movements. This means they will unlikely be protected by copyright law, as they do not have enough complexity to constitute true choreography. The Copyright Office clearly articulates that “individual movements or dance steps by themselves are not copyrightable,” pointing to the waltz as an example.
However, the attorneys at Pierce Bainbridge approached the issue from an additional perspective, asserting that Fortnite’s “emotes” also appropriate the artists’ likenesses. From Lindsay Lohan’s lawsuit against Rockstar Games to Ed O’Bannon’s class-action lawsuit against the NCAA, such charges are more familiar to the legal world than those involving the protection of dance moves. Nonetheless, such suits are largely unsuccessful unless the use of the person’s likeness is flagrant as opposed to mere allusion.
Regardless of the result of the Fortnite suit, the rise of digital media in the age of the internet raises questions as to whether current intellectual property law, last updated for choreography in the Copyright Act of 1976, is outdated. Simple motions, memes, and short video clips can now be quickly monetized, and we are moving increasingly towards an open-source world where conceptions of creativity and ownership are constantly being challenged. In the face of these changes, some critics have said updates to copyright law that draw upon broader, more flexible conceptions of artistic expression may be necessary. While future updates to the Copyright Act may be needed to determine numerous unanswered questions in intellectual property law, Fortnite’s over 200 million registered players can rest assured that their “emotes” are safe for now.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).