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Fortnite fight: Can the Carlton dance be claimed?

Rapper 2 Milly, above, is one of the performers suing the makers of the video game Fortnite. (Randy Shropshire/Getty Images)

This story has been updated to reflect the latest news.

The ability to copyright or otherwise protect a dance, even if it’s just a few moves, is getting its biggest test yet, as two more entertainers are suing the maker of Fortnite, the blockbuster video game, claiming it swiped their choreography.

Backpack Kid (a.ka. Russell Horning), the teen famous for his fast-paced, slicing moves with his arms and hips during a Katy Perry musical performance in 2017, joins Alfonso Ribeiro, the actor who played Carlton Banks on the popular 1990s sitcom “The Fresh Prince of Bel-Air,” in alleging that Epic Games, which makes Fortnite, is using their dances without permission or credit. 

Ribeiro, whose character was known for his jolting, elbow-flapping “Carlton dance,” filed his lawsuit Monday in federal court. Horning’s mother confirmed that she filed a lawsuit against Epic Games on her 16-year-old son’s behalf, according to TMZ.

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There are now three complaints against Fortnite. Earlier this month, Terrence Ferguson, better known by his rapper sobriquet 2 Milly, also alleged that Epic Games copied his signature dance moves without his consent, to sell to players as a victory dance for their avatars. Ribeiro, Horning and Ferguson are represented by the same legal team, according to the news service Law360, and they are also suing Take-Two Interactive, creator of the NBA 2K16 basketball game, on the same grounds.

The Carlton dance “has become synonymous with Ribeiro,” the actor said in his court filing. “The dance is a part of Ribeiro’s identity and the dance’s unique movements readily evoke a connection to Ribeiro.”

The plaintiffs have said in media reports that they are in the process of copyrighting their moves. But legal experts say that the U.S. Copyright Office, which holds the records of copyright registration, has not previously protected the kind of brief gestural moves that these three complaints are focused on.

"It has to be somehow coherent and expressive as a whole,” says intellectual property lawyer Paul Kilmer. “It has to have a sequence, a spatial environment of some kind, a series of movements or a pattern. They won’t register end-zone dance moves or yoga positions.”

Ballroom dances, folk dances and social dances are also not protected by copyright “because they’re old and traditional,” says IP lawyer Mark Sommers. Commonplace movements aren’t protected. Nor, he adds, is spelling out letters with your arms, even in the case of the iconic gestures that crowds at football games or wedding receptions rise to do whenever the Village People’s “Y.M.C.A.” is played. 

But the copyright office isn’t the final word, lawyers say. The court is the final word. 

In theory, 2 Milly, Ribeiro and Horning could submit their dances as works of choreography to the copyright office, Kilmer says, and even if the office rejects them, they could still sue and see what a court decides.

But there’s more to the Fortnite complaints than copyright infringement. The plaintiffs are also bringing in their “right of publicity,” a different matter that looks at the dance moves as part of someone’s identity, whether the dance is copyrighted or not. 

“It would strike me [they have] a better shot at that,” says Kilmer. 

In his suit, for instance, 2 Milly alleges that in stealing the dance he choreographed, Fortnite has hijacked his identity.

Let’s think about that for a minute. In a world of GIFs and memes, most of us are accustomed to processing instantly the tiniest snip of human movement or body language on digital platforms. We can decipher what it means, who’s doing it and how cool it is. For example, a few subtle but highly expressive cues on an animated GIF, repeated in an infinitely looping mini-video clip, are all it takes for us to read the emotion of Rihanna’s eye roll, and interpret it as sassy, done-with-it hauteur.

The Fortnite case raises wider, existential issues about our animal selves. About how technology is shaping the fundamental, hard-wired ability we’re born with that enables us to recognize one another, through split-second gestures that make up a person’s identity. The Web is full of movement portraits of all kinds, telling the kinds of stories about ourselves — about character, personal style and quirkiness — that we used to get only from still photographs.

2 Milly’s case centers on a few quick, exquisitely simple moves: Basically, it’s a slap with one arm, then the other; rock and roll the hips, repeat. It was featured in 2 Milly’s 2014 music video of the same name. Now, the Milly Rock — or something that looks very similar — is available for Fortnite players to purchase for their avatars, which prompted the lawsuit.

Fortnite is free to download; the game makes its money — an estimated $1 billion in revenue — from selling outfits (“skins”) and victory-dance “emotes” to its more than 200 million players so they can customize their avatars. The emote that resembles the Milly Rock is called “Swipe It” in Fortnite, and it’s a close digital version, cocked elbows, rolling hips and all.

The rapper alleges in his lawsuit that Epic “has unfairly profited from exploiting his protected creative expression and likeness.” 

The case may come down to this: Do people immediately associate “Swipe It” with 2 Milly? Is that dance uniquely his, and does it define his persona — his character, the way he presents himself to the rest of us? 

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If so, says  Kilmer, “the claim under unfair competition and right of publicity is they’ll think [2 Milly] approved it. And it simulates his likeness and persona, so it may violate state or federal law of unfair competition, or a state right of publicity. Possibly he could succeed on those claims.”

Whether a dance routine really defines a person’s persona, Kilmer says, “is a very interesting question, and not one I’ve ever seen determined.”

“It will come down to the facts,” he adds. “Can he put people on the stand who will say the public associates him with these moves and nobody else. If they can make that case, then they would have a shot.”

There have been an increasing number of cases, from athletes, entertainers and other artists concerned about the use of their looks and their persona in video game platforms, says Sommers. The law is playing catch-up with technology. “The quality of video games has become so real,” he says, “that they’re able to offer products that drill down to these particular elements and depictions that previous technology did not allow.”

Also, social media has trained us to digest information so much more quickly than before, which leads Sommers to believe we’ll be seeing more such cases. 

This case touches on more than potential damages or royalties. It goes to how our brains process meaning. What is the smallest bit of information that tags a person? What fragment of our motor vocabulary — a walk, a hair flip — equals identity? What sliver of movement, what gesture of the hand, or even, what gesture plus time and circumstance?

“How you communicate with people has changed through texting as opposed to when you made a phone call,” Sommers says. “So the ability of people to digest information quickly and succinctly has allowed them to digest elements of identification succinctly and quickly, too.”