![\"\"](\"https:\/\/jolt.richmond.edu\/files\/2019\/03\/Zaq1.png\")
<\/p>\nBy: Zaq Lacy, Associate Executive Editor<\/p>\n
<\/p>\n
Whether you love it, hate it, or simply do not care, it is a nearly foregone conclusion that you have heard of Fortnite Battle Royale, Epic Game\u2019s free-to-play online massive multiplayer action shooter game,[1]<\/a> which features a frenetic combination of firefights and construction with highly customizable characters. Released in August of 2017, it has grown to have over 200 million users, a number nearly that of the population of Brazil.[2]<\/a> Despite being free-to-play for those who do not wish to purchase the standard or deluxe editions,[3]<\/a> Epic Games raked in a record $2.4 billion dollars in 2018 alone from in-game purchases, mostly from character customization,[4]<\/a> which can include outfits and celebratory dance moves that cost up to $20 apiece.[5]<\/a><\/p>\n It is these dance moves that have been the focus on legal troubles for Epic over the past few months.[6]<\/a> The issue that has risen is that several of these moves were drawn from various sources of pop culture, from hip-hop artists to YouTube stars to actors, without permission or recompense.[7]<\/a> This has resulted in several copyright infringement lawsuits being leveled against Epic by rap artist 2 Milly for their use of his dance move \u201cMilly Rock,\u201d[8]<\/a> rap artist BlockBoy JB for their use of his dance move \u201cThe Shoot,\u201d[9]<\/a> YouTuber Russell Horning (aka \u201cthe Backpack Kid\u201d) for their use of his viral dance move \u201cthe Floss,\u201d[10]<\/a> and actor Alfonso Ribeiro (The Fresh Prince of Bel-Air) for their use of his classic dance move \u201cthe Carlton.\u201d[11]<\/a> The complaint for 2 Milly\u2019s lawsuit argues that \u201cEpic has unfairly profited from exploiting [2 Milly\u2019s] protected creative expression and likeness.\u201d[12]<\/a> Moreover, 2 Milly argues that the \u201cMilly Rock\u201d dance move is his \u2018signature,\u2019 and that \u201ceverybody would tell you, from here to Alaska, \u2018Hey, that\u2019s the Milly Rock.\u2019\u201d[13]<\/a> Unfortunately, it does not seem like argument will be able to overcome the applicable law set out by Congress.[14]<\/a><\/p>\n The Copyright Act provides guidance for the general subject matter that is covered by copyright.[15]<\/a> Regarding dance, it provides that \u201cpantomimes and choreographic works\u201d are covered,[16]<\/a> though Congress made it clear that \u201c\u2018choreographic works\u2019 do not include social dance steps and simple routines.\u201d[17]<\/a> Further, the U.S. Copyright Office has stated that \u201cthe combination of these three dance steps is a simple routine that is not registerable as a choreographic work.\u201d[18]<\/a><\/p>\n Despite the clarification, the differences between dance moves and actual choreography are subtle. For example, another YouTuber, choreographer Gabby David, successfully reached a settlement with Epic games[19]<\/a> after Epic \u2018borrowed\u2019 a ten-second section of a dance routine that she posted on YouTube.[20]<\/a> The reasoning behind the settlement seems to be because, even though the ten second clip only contained a few of the dance moves, not dissimilarly to those involved in the active lawsuits, they were part of a larger portion of choreography developed and recorded by Ms. David.[21]<\/a> Seemingly, the only difference between the dance moves in question and that of Ms. David were the fact that the aforementioned moves consisted of a limited number of movements that simply repeated while Ms. David\u2019s were part of a larger performance.<\/p>\n With the prevalence of social media and other mediums that are borne of the technology that is now available to nearly every creative person that wishes to share a particular skill, such as sweet dance moves, it is necessary to revisit the statute that was last truly updated in 1976,[22]<\/a> long before the internet had even been truly invented. From a policy perspective, the antiquity of this law could potentially have a stifling effect on the creativity of countless individuals if they feel they cannot develop a signature move that popular culture recognizes as their own simply because someone else can take it, assimilate it into their own medium, and charge a substantial amount for it. However, barring any unexpected court rulings, until Congress takes fresh look at \u00a7 102(a)(4), it seems that Epic\u2019s own move, \u201cthe Hustle,\u201d is safe from the threat of lawsuit as long as they do not take their moves from a fully choreographed routine.<\/p>\n <\/p>\n [1]<\/a>See Fortnite<\/em>Battle Royale<\/em>, Epicgames.com, https:\/\/www.epicgames.com\/fortnite\/en-US\/buy-now\/battle-royale (last visted Mar. 7, 2019).<\/p>\n [2]<\/a>See <\/em>Christopher Palmeri, Fortnite Now Has 200 Million Players, up 60% from the Last Count<\/em>, Bloomberg LP (Nov, 26, 2018), https:\/\/www.bloomberg.com\/news\/articles\/2018-11-26\/fortnite-now-has-200-million-players-up-60-from-the-last-count.<\/p>\n [3]<\/a>See<\/em>Fortnite, supra <\/em>note 1.<\/p>\n [4]<\/a>See <\/em>Matt Porter, How Much Money Did Fortnite Make in 2018?<\/em>,Dextero.com(Jan.16, 2019), https:\/\/www.dexerto.com\/fortnite\/how-much-money-did-fortnite-make-in-2018-285995.<\/p>\n [5]<\/a>See<\/em>Devon Pendleton & Christopher Palmeri, Fortnite Mania Fuels Epic Growth up to $8.5 Billion<\/em>, Bloomberg LP(July 24, 2018), https:\/\/www.bloomberg.com\/news\/features\/2018-07-24\/fortnite-phenomenon-turns-epic-game-developer-into-billionaire.<\/p>\n [6]<\/a>See <\/em>Madeline Schrock, Why Fortnight\u2019s Dance Animations Are a Can-of-Worms Copyright Problem<\/em>, Dancemagazine.com(Dec. 13, 2018), https:\/\/www.dancemagazine.com\/fortnite-2623060212.html.<\/p>\n [7]<\/a>See id.<\/em><\/p>\n [8]<\/a>See id.<\/em><\/p>\n [9]<\/a>See id.<\/em><\/p>\n [10]<\/a>See<\/em>Steve Knopper, Why Fortnight Is Accused of Stealing Dance Moves<\/em>, Rolling Stone(Dec. 19, 2018), https:\/\/www.rollingstone.com\/music\/music-features\/fortnite-epic-games-2-milly-stealing-dance-moves-769344\/.<\/p>\n [11]<\/a>See id.<\/em><\/p>\n [12]<\/a>See id.<\/em><\/p>\n [13]<\/a>See supra<\/em>note 10.<\/p>\n [14]<\/a>Eric Garrett, \u2018Fresh Prince\u2019 Actor\u2019s Lawsuit Over \u2018Fortnite\u2019 Dance Gets Surprising Update<\/em>, Comicbook.com(Feb. 14, 2019), https:\/\/comicbook.com\/gaming\/2019\/02\/14\/fresh-prince-actor-lawsuit-fortnite-dance-surprising-update\/.<\/p>\n [15]<\/a>17 U.S.C. \u00a7 102<\/p>\n [16]<\/a>17 U.S.C. \u00a7 102(a)(4)<\/p>\n [17]<\/a>Circular 52 Copyright Registration of Choreography and Pantomime, U.S. Copyright Office, at 3 https:\/\/www.copyright.gov\/circs\/circ52.pdf (last visted Mar. 7, 2019).<\/p>\n [18]<\/a>See supra<\/em>note 14.<\/p>\n [19]<\/a>See supra<\/em>note 6.<\/p>\n [20]<\/a>Gabby J. David, \u201cBad & Boujee\u201d \u2013 Choreography<\/em>, YouTube.com(Jan. 26, 2019), https:\/\/www.youtube.com\/watch?v=LcAFlWXlql8.<\/p>\n