Carlton v. Fortnite

Okay, so to be fair, I really don’t care about either side of this. I’ve never watched Fresh Prince, nor am I familiar with the character Carlton or the dance in question. Neither have I played Fortnite. I have and do, however, play many games which happen to include dance emotes and how this plays out could have a lasting impact on how game developers deal with them in the future. It could also see several emotes removed from other games in hope of avoiding this happening to them, especially if the developer/publisher profited from it.

It’s a predominantly legal matter, which means I don’t have the proper expertise to offer an opinion of my own, and since I’m not a federal judge my opinion is largely irrelevant anyway.

I have, though, been keeping up with it. It’ll probably be months before we really hear anything. Fascinating as the machinations of our legal system are, they’re also s l o w. So far I’ve asked one of the founding partners of Press Start Legal over on reddit.

SDWeasel – Given the current press coverage, what is the legal outlook for the various lawsuits against Epic for the use of dances in their game? The “Carlton dance,” for example, makes an appearance in many games under a variety of names. Is it even possible to get copyright or trademark protection for something like a dance move?

PressStartLegal –

I am so glad you asked this question, I knew it was going to come up at some point. The current state of the law in the United States is you cannot hold a copyright for a single dance move. While the Copyright Act does provide protections for chirography, current case law states a single dance move, such as the Carlton is not a chirography, as a full chirography is a number of single dance moves chained together to create a work of art.

I think it would be dangerous for a court to change the current landscape and to hold against this settled issue. This is exactly what people suing epic are trying to do. While many people would see Epic as the greedy corporation refusing to compensate the creators of these dance moves, I side with Epic on this. At the end of the day, Epic created something new (the digital version of these dance moves) based off of something that is not afforded copyright protections. I predict two outcomes in this matter, 1 everything will be settled out of court in a confidential manner that will never be discussed to the public, or 2 Epic fights to the end, and if they lose they will appeal as far up as the system will allow.

I also go lucky enough that a YouTube channel I watch, LegalEagle, has just posted a video about this as well.

The first obvious takeaway from these is that opinion currently seems to favor the defendant, Epic Games, et al.

Another is that copyright, especially where dance and choreography are concerned, isn’t a realm in which much actual litigation has occurred. Since US law relies primary upon the precedent of past decisions, this is breaking new ground legally. The outcomes we see out of this case will strongly inform future cases, especially if it ends up in the Supreme Court.

From a legal standpoint, the biggest question at the moment is whether or not the dance(s) in question qualify as a protected work to begin with. Central to that is whether or not it’s a “public work.”

I’m under the impression that public work tends to cover things like traditional dances like the waltz and foxtrot, as well as folk dances. They cannot, by their nature, have a proper owner. You can, however, combine those things to create a new work that’s unique and can be copyrighted. An entire ballet performance, for instance, can be copyrighted, even though the individual positions and moves themselves cannot be. The same way you copyright a book but not the individual words used to make the book.

Alfonso Ribeiro himself is on video as having said that he “stole” it from a couple of people, but also that it has a “little of myself” thrown in, so it’s not exactly case destroying.

See, in order to copyright some, you also have to be it’s “original creator.” If it can be proved that Alfonso, or any of the other people suing, weren’t the original creator of the dance in question, then they don’t have the ability to copyright it and can’t sue for infringement. Of course, proving that may be quite difficult.

I look forward to seeing how all this going to turn out. Can honestly go either way, at this point.

Y’all take care, try not to get sued for making dance emotes.

4 thoughts on “Carlton v. Fortnite

  1. The case law seems to favor the idea that if you come up with a dance move that you expect the general public to follow, things like the twist or whatever, you cannot trademark or copyright it.

    If you have some choreography that clearly requires professional dancers (and it isn’t just an obvious knock-off of something already in the public domain) then you can go after somebody who steals your work.

    The Carlton seems to fall into the former and, even worse, prior art seems to be in play as well. I expect that he is hoping that they’ll just pay him to go away.

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    1. The vast majority of our legal system seems to revolve around hoping they’ll just pay you to go away. The actual cost of litigation is obnoxious. Even if Epic wins it’ll cost them a good bit of money.

      Like

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