By: Marie Claire O’Leary
Epic Games Inc., the creator of the hit video game ‘Fortnite,’ has recently come under fire by celebrities arguing that the game has profited off their dance moves without their permission. The claims have been filed by Alfonso Ribeiro, best known for his role as Carlton Banks on the ‘Fresh Prince of Belair,’ and the rapper 2 Milly. In Ribeiro’s Complaint he argues that “The Dance” has become synonymous with him because he constantly receives requests to perform the dance and has integrated it into many performances including the 2014 season of ‘Dancing with the Stars.’ Similarly in his Complaint the rapper, 2 Milly, argues that his dance the ‘Milly Rock’ has become synonymous with him. 2 Milly released the rap ‘Milly Rock’ in 2014 and performed the accompanying dance in a music video posted to YouTube. The dance became wildly popular in the summer of 2015 when celebrities like Rihanna, Wiz Khalifa, and Chris Brown posted videos of themselves doing the Milly Rock.
Fortnite is a widely played video game and homages to pop culture assist in its enormous success. In the game Fortnite, players can purchase things to customize their avatars. Epic renamed the Milly Rock “Swipe It” and renamed The Carlton Dance “Fresh.” Both Complaints argue that Epic profited from the artists’ without their consent and without sharing any of the enormous success garnered by Fortnite. The game has only been out since 2017, but it quickly became one of the most popular video games, with sales of over $1 billion since its release. Sales from May 2018 alone were reportedly $318 million.
Unfortunately for Ribeiro and 2 Milly, the Copyright Office decided that a simple dance move cannot be copyrighted. 2 Milly submitted an application to copyright the Milly Rock, but the Copyright Office denied him twice stating that, “[t]he movements represented in the video deposited for Milly Rock Dance depict a simple routine made up of social dance steps and do not represent an integrated, coherent and expressive compositional whole and is thus not eligible for copyright registration.” “Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves.”
2 Milly neglected
to inform Epic that his application had been denied, and kept claiming that he
was “in the process of registering . . . with the United States Copyright
Office.” Epic has since been in contact with the
Copyright Office and has now submitted to the Central District of California proof
of the Milly Rock Dance registration
Although Ribeiro and 2 Milly’s cases are still before the courts, it looks like
Epic won this round.
 Bill Donahue, Dance In ‘Fortnite’ Suit Refused By Copyright Office, Law360 (Feb. 14, 2019, 12:09 PM), https://www.law360.com/ip/articles/1129321/dance-in-fortnite-suit-refused-by-copyright-office.
 Mike LaSusa, ‘Fresh Prince’ Actor Sues Game Makers Over ‘Carlton’ Dance, Law360 (Dec. 17, 2018, 10:42 PM), https://www.law360.com/articles/1112298.
 Complaint at 4, Ribeiro v. Epic Games, Inc., No. 2:18-cv-10412 (C.D. Cal. 2018).
 Complaint at 4, Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. 2018).
 Id. at 3.
 Id. at 1; see also Complaint Ribeiro, supra note 3, at 1.
 Complaint Ferguson, supra note 4, at 1; see also Complaint Ribeiro, supra note 3, at 1.
 Complaint Ferguson, supra note 4 at 1; see also Complaint Ribeiro, supra note 3, at 1-2.
 Complaint Ribeiro, supra note 3, at 2.
 Complaint Ferguson, supra note 4 at 1.
 Letter from U.S. Copyright Office to David Hecht, Attorney for 2 Milly (Dec. 19, 2018).
 Copyright Registration of Choreography and Pantomime, U.S. Copyright Office, Circular 52 https://www.copyright.gov/circs/circ52.pdf (revised Sept. 2017).
 Supplemental Declaration at 1-3, No. 2:18-cv-10110 (C.D. Cal 2019).
 Id. at 4-5.