arlier this week, actor Alfonso Ribeiro filed a claim for
copyright infringement, violation of the right of publicity, and unfair
competition against Epic Games, Inc. over its use of the dance move commonly known
as “The Carlton” (the “Dance Move”) in the popular video game Fortnite: Battle
Royale (“Fortnite”). Ribeiro also filed
a similar claim against Take-Two Interactive Software Inc. and certain of its
subsidiaries over the use of the Dance Move in the NBA 2K video game series
(“NBA 2K”).
To date, both Fortnite and NBA 2K have generated millions of
dollars in revenue via in-game purchases, including character avatar dance
moves known as “emotes”. These emotes
have also taken on their own significance in current pop culture, with millions
of teens all over the world posting videos of themselves copying the dance
moves of their video game avatars on YouTube and other social media sites,
often under hashtags referencing the video games (e.g., #fortnitedance or #fortnitevideos), rather than the dance
move creators. The Dance Move, which was
first popularized by Ribeiro in an early 90s episode of the TV sitcom “The
Fresh Prince of Bel-Air,” was included in Fortnite and NBA 2K as purchasable in-game
emotes named the “Fresh” and “So Fresh”, respectively. The Dance Move was also featured in promotional
materials for the games. None of these
uses of the Dance Move gave attribution to Ribeiro or had Ribeiro’s prior
permission, which Ribeiro argues was necessary.
Ribeiro’s complaint seeks injunctive relief to prevent the further
inclusion and sale of the Dance Move in the games and use in promotional
materials, as well as damages, including profits purportedly attributed to the
misappropriation and improper use of the Dance Move and Ribeiro’s likeness.
In the complaints, Ribeiro argues that despite first being
aired more than twenty years ago, the Dance Move remains “distinctive,
immediately recognizable, and inextricably linked to Ribeiro’s identity,
celebrity, and likeness” and that accordingly, “the Dance [Move] has become
synonymous with Ribeiro…..[and] is a part of Ribeiro’s identity.” The complaints also note that Ribeiro filed
an initial application with the United States Copyright Office on December 15,
2018 to obtain a copyright registration for the Dance Move. Ribeiro’s complaint further alleges that the
emotes constitute unlawful digital copies and derivative works of the Dance Move
as well as a misappropriation of Ribeiro’s identity, and that the way the Dance
Move is used creates the false implication that Ribeiro consented to the use of
his likeness and endorsed the games.
Additionally, Ribeiro accuses the defendants of intentionally inducing the
players of the games to perform and mark the Dance Move with hashtags
referencing the games, and argues that this creates an erroneous public
association between the Dance Move and the emote within the game.
Ribeiro’s claims are representative of growing pushback over
the way in which the video game industry earns revenue and follows on similar
claims brought by rapper 2 Milly and Russell Horning a/k/a the “Backpack Kid”
over in-game uses of their respective signature dance moves, the “Milly Rock”
and the “Floss.” Many prominent
musicians, including Chance the Rapper, have also grown vocal about their
dislike of the exploitation of signature dance moves, noting that the songs
behind the dance moves should also be included in the games so that the
musicians and creatives that inspired the dances can also benefit from the
revenues being generated.
If successful, the lawsuits brought by Ribeiro, 2 Milly, and
Horning could significantly impact the types of micro-transactions and other in-game
purchases that have become the largest revenue source and profit driver for
most video game companies, particularly in light of the fact that many of the
most popular video games out today, including Fortnite, are otherwise free to
play. A successful claim could also spark
a wave of other celebrities and YouTube stars filing claims of their own, which
could drastically impact the current profitability levels of the major video
game companies.
However, Ribeiro’s claims are certainly not a
slam dunk. First, the law is not clear
as to whether an individual dance move, as opposed to an elaborate
choreography, is actually copyrightable and so this issue is likely to play a
large part in determining the outcome of the case. Another potential setback that Ribeiro may
face is the fact that in several public interviews in the past, he has openly
stated that the Dance Move was “inspired by” both Courtney Cox’s dance in Bruce
Springsteen’s Born to Run video, as
well as Eddie Murphy’s “White People Dance”.
That the Dance Move may have been influenced by a prior dance or
choreography does not mean it is not sufficiently original to avail itself of
copyright protection, but it is another complicating factor that makes this
case far from straightforward. Finally,
California’s Right of Publicity Statute protects a person’s name, voice,
signature, photograph, and likeness, but not necessarily a person’s gestures or
moves. In determining “likeness”
California courts have used the “readily identifiable” test (e.g., whether a
person could reasonably determine that the use in issue depicts the plaintiff)
to decide whether the right of publicity has been violated. Thus, Ribeiro will have to show that the
Dance Move is so closely intertwined with his persona that it becomes “readily
identifiable” with his likeness. It will
be interesting to see how these claims progress and what kind of impact the
decisions will have on the entertainment industry as a whole.
Filed in: Legal Blog
December 24, 2018