Leanne Roca – In the age of smartphones and an ever-growing social media usage, a video, picture, “meme,” or tweet has the potential to instantly reach hundreds of thousands of users in a matter of minutes and reach immediate, momentary fame, often unexpectedly. Such was the rise of Russel Horning, otherwise known as “Backpack Kid,” who uploaded a video his “Floss” dance onto social media. The video caught wind, almost instantly flooding teenage and millennial Instagram feeds, and later inspiring a wave of imitation videos often shared on Facebook.
Similarly, actor Alfonso Ribero’s famous dance as his character, Carlton Banks on “Fresh Prince of Bel-Air,” is likely instantly recognizable to any person familiar with the television series. Not even 1990’s sitcom dances are immune from the viral powers of social media, as the “Carlton” experienced a resurgence of fame throughout the different outlets. Rapper 2 Milly experienced a similar moment in pop culture upon the release of his “Milly Rock” music video, featuring a unique dance move dubbed the “Milly Rock.” The “Milly Rock” made its fair share of appearances throughout social media outlets through imitation videos similar to those of the “Floss.”
These three viral dances share another common thread: they were integrated into the also popular video game: Fortnite. Fortnite is an online combat game where 100 users are dropped into a map and the last gamer standing is the winner. Although the game is available free of charge, it offers micro-transactions such as costumes and dances for the characters that can be purchased with actual dollars. The “Carlton” and “Milly Rock” appear under different names, the “Fresh” and the “Swipe It,” respectively, however Fortnite made no effort to alter the name of the “Floss.” Horning, Ribero, and 2 Milly are now suing Epic Games, Fortnite developer, for infringement of their copyright in their respective dances.
2 Milly was the first to file suit, followed by Horning and finally Ribero. Ribero’s complaint stated that Fortnite is unfairly profiting from “The Carlton,” that his likeness is being used to exploit his “protected creative expression,” and that he is inextricably linked to the dance move. Ribeiro is seeking both an injunction from the use and sale of his dance and seeking damages in a California federal court. All three plaintiffs are represented by the same law firm: Pierce Bainbridge Beck Price & Hecht.
There is no doubt that a dance move, recorded on a tangible medium, may have copyright protection. According to the The Copyright Revision Act of 1976, a choreographic work may be fully protected. However, it explicitly carves out an exception and does not offer protection to social dance steps and simple routines. The definition of “choreographic work” is not clearly defined, and the law is unclear on whether a Court will consider these dance moves protected. Because of current social media trends and the widespread use and documentation of the generation-defining dance moves, there is a strong argument for classifying them as both simple and social. Furthermore, these dance moves, more specifically, “The Carlton,” may not be as original as the plaintiffs claim, and may have been strongly influenced by previous artists. A choreographic work influenced by predecessors may still be protected by copyright law, however, the dance move must meet an originality threshold before protection is extended. The classic test to determine originality is whether or not the work was created as a result of individual labor. However, mere influence does not preclude classifying work as a product of individual labor. Because case law is unclear on the exact criteria of originality beyond the basic test, whether or not these dance moves will be considered simply influenced or explicit imitations of previously recorded dance moves is also unclear.
The interpretation of current case law in the modern context will help answer the lingering copyright questions raised in the culture of imitation and viral sharing of videos through social media outlets.
