Will Fortnite be as popular without dancing?


#1
Will Fortnite be as popular without dancing? Terrence “2 Milly” Ferguson, a popular New York rapper, is suing Epic Games over the inclusion of a dance in Fortnite. Ferguson alleges that the “Swipe It” emote in Fortnite is an unauthorized copy of the “Milly Rock” dance from his 2014 music video. Fortnite, like many games with a cosmetic element, cashes in on culture by turning memes and pop references into emotes, gestures, and skins. Ferguson is not the first person to complain about the lack of credit or compensation from Epic, but he is probably the most high-profile personality to file papers. “Scrubs” actor Donald Faison similarly accused the studio of swiping his moves as seen in this clip from the show. Fortnite has drawn ire from many dance creators because of the massive amounts of money involved, as well as the sting of having the dances “appropriated” by the game. For example, many younger Fortnite players call this the “Fortnite Dance” due to it being one of the original emotes, despite it being more properly known as “The Floss” by its creator. You can copyright “pantomimes and choreographic works” but it’s unclear if the Milly Rock, The Shoot Dance, or any of the other moves used by Epic would qualify under these rules due to the length of the routines.

This is a companion discussion topic for the original entry at https://www.quartertothree.com/fp/2018/12/05/will-fortnite-be-as-popular-without-dancing/

#2

Clearly Fair Use by Fortnite (if the dance moves are even copyright-able). This case will get thrown out.


#3

I’m not an attorney, but I don’t see how selling emotes is “clearly” fair use at all.


#4

It’s definitely not fair use, they aren’t criticizing the dance moves in a newspaper article or whatever, they’re appropriating them for their game. Charging for them makes it even more egregious.

All that is immaterial though; you can’t copyright individual dance moves or even short sequences of moves in the US, only “choreographic works”, which are much longer. From my perspective as a non-lawyer who just read a couple of articles and comment sections discussing the matter, it does seem likely to be thrown out of court.


#5

The idea of copyrighting a dance seems ridiculous to me.


#7

That’s what I was thinking at first but really, don’t see why a song can be copyrighted but not a dance. They’re both unique artistic works. If you create something unique and in demand, then someone else steals it and uses their platform to make significant money, that doesn’t seem terribly fair.


#8

Can you copyright a silly walk? What about a twirl? What about a particularly unique way of putting on a hat?

It gets crazy fast.


#9

Yeah, i don’t think you can copyright movements of your body like that.


#10

I’m going to copyright the path I take on my walk to work. It’s quite unique and I want to get PAID.


#11

Also, The Ministry of Silly Walks wants in on this copyright business. If you can copyright a dance and extort money from a videogame company, they have some letters to send.


#12

Clowns register their faces with a central authority, bypassing the law. A violation presumably means no one will hire you again, not jail time.

Include the suit and bowler hat, as well as the government ministry itself, and John Cleese and MP may have a good case against you because you’re stealing their act.

As for the dances, they are intellectual works, and longer choreographed pieces already fall under intellectual property law. But the difference is one of length or size, not kind.

[edit]

Here’s an interesting video.

http://www.unesco.org/archives/multimedia/?pg=33&s=films_details&id=27&vl=Eng&vo=3

Just body movements.

[edit]

Anyway, I think dance moves not being copyrightable is one of those old traditions like servers not making minimum wage and having to survive on tips instead.


#13

It’s interesting to me that WoW did this long before Fortnite, but I don’t recall any similar furor, even though it similarly made a huge amount of money in its day.


#14

It’s not a dance though. It’s a dance move. I think they’re difference. It seems closer to copying a note than a song to me. These movements are not full pledge dances, more like lifting a leg and twirling than a full ballet.


#15

I think a big difference is that no one really paid attention when WoW or other games did it because it flew under the radar. Fortnite is so popular that kids are learning the dances as the Fortnite version, so for example, they call it the “Fortnite Floss” or the “Fortnite Dance” instead of “The Floss” and crediting the actual creator. Same with “The Shoot” being known as “Fortnite Hype” by a lot of kids.


#16

Yeah, WoW was big, but Fortnite is much bigger, like 15-20x, in terms of the number of people playing it.


#17

I think WoW skews a bit older too.

More like a sentence or paragraph in a short book. Can you get into trouble for plagiarizing a sentence? Sometimes.


#18

Usually in an academic work, though. In fiction it’s usually just called an “allusion”.


#19

Not often. If you have two books and only one sentence between them is exactly the same you don’t usually see that in courts. Now if you see the repeated pilfering or it seems almost like the exact book with some word changes that’s different… that’s comparing the whole of the whole not tiny pieces.

Dance moves aren’t protected. I think it’s kind of scummy what Fortnite is doing, but I don’t think there is much to stand on here. I guess that’s what the courts are for, to settle these things.


#20

Maybe because there are not a lot of dance lobbyists? Compare to the recording industry, where you have to jump through hoops to sample even a very small piece of music:

https://www.nolo.com/legal-encyclopedia/permission-sampled-music-sample-clearance-30165.html

Do not believe the widespread myth that “less than two seconds is fair use.” There is no “magic number” like this.


#21

Or maybe it’s a matter of friction. Maybe you believe that the legal system should minimize the amount of friction that occurs in society. Would making dance moves copyrightable add to or lessen the amount of friction in society?