Per­form­ers take on video game maker over dance moves.

Per­form­ers sue video game maker over danc­ing avatars’ moves.

The Hazleton Standard-Speaker - - FRONT PAGE - BY EL­IZ­A­BETH A. HAR­RIS

In 1973, per­former Hugo Zac­chini sued Scripps-Howard Broad­cast­ing af­ter one of its news pro­grams aired his en­tire act on tele­vi­sion — an act in which he shot him­self out of a can­non at an Ohio county fair and landed in a net 200 feet away.

The case made it all the way to the Supreme Court, which found in his fa­vor, say­ing, es­sen­tially, that if some­one could watch the whole thing on tele­vi­sion, why would they bother to get off the couch and see it in per­son?

To­day, a new set of cases is nudg­ing the le­gal bound­aries of who con­trols cer­tain per­for­mances. This dis­pute cen­ters on danc­ing avatars in “Fort­nite Bat­tle Royale,” one of the big­gest video games in the world, and whether the moves they do are owned by some­body else.

Three per­form­ers have sued Epic Games, which makes “Fort­nite,” an ad­dic­tive, money-mint­ing jug­ger­naut of a sur­vival game where play­ers fight it out to stay alive while they kill ev­ery­body else. The game is free to down­load, but play­ers pur­chase add-ons as they go along, in­clud­ing a ro­tat­ing of­fer­ing of dance moves called “emotes.”

Among those moves, ac­cord­ing to the com­plaints, filed be­gin­ning in De­cem­ber in U.S. Dis­trict Court in Los An­ge­les, is an en­thu­si­as­tic back-and-forth arm-swing­ing mo­tion that looks just like the Floss, a speedy lit­tle dance cre­ated by Rus­sell Horn­ing, a teenager from Lawrenceville, Ge­or­gia, who goes by the name Back­pack Kid.

There is also a snappy num­ber called Fresh that looks un­can­nily like the Carl­ton Dance done by Al­fonso Ribeiro, the ac­tor who played Carl­ton on the show “The Fresh Prince of Bel-Air.”

And there is a swishy-sway­ing mo­tion, which the com­plaint says is iden­ti­cal to the Milly Rock, cre­ated by rap­per 2 Milly.

“Peo­ple book me, they pay me to come per­form the song and do the dance,” 2 Milly said in an in­ter­view. “They’re steal­ing from me.”

Ribeiro, 2 Milly and Back­pack Kid’s mother (on his be­half) are su­ing Epic Games for copy­right in­fringe­ment. They are also su­ing Take-Two In­ter­ac­tive Soft­ware, maker of the NBA 2K games, which also al­low play­ers to buy the dances.

The plain­tiffs’ lawyer, David L. Hecht, said that his firm has spo­ken with a “sig­nif­i­cant num­ber” of peo­ple about bring­ing sim­i­lar claims and that he has hired a team of peo­ple, mostly in their 20s, to play video games for him as re­search.

Epic Games said it would not com­ment on on­go­ing lit­i­ga­tion. Take-Two did not re­spond to a re­quest for com­ment.

The com­pa­nies have not yet filed their de­fenses in court, though they are likely to ar­gue that the dance moves can­not be copy­righted. The law­suits are among sev­eral re­cent cases test­ing copy­right laws that were writ­ten in a vastly dif­fer­ent tech­no­log­i­cal age. In­deed, as dig­i­tal an­i­ma­tion has be­come richly vivid and de­tailed, even who owns the rights to tat­toos drawn on ath­letes’ bod­ies has be­come an is­sue in sports video games.

But while there is plenty of case law re­gard­ing the copy­right­ing of songs and writ­ten works, there is far less in the record re­gard­ing chore­og­ra­phy. One case sev­eral years ago in­volved Bikram Choud­hury, the now-dis­graced yoga in­struc­tor, who tried to copy­right a “hot yoga” se­quence as a chore­o­graphic work. He lost.

Sev­eral in­tel­lec­tual prop­erty lawyers suggested there have not been a lot of chore­og­ra­phy cases be­cause there is not a lot of money in chore­og­ra­phy.

And while they were tick­led by the “Fort­nite” cases (“’Fort­nite’ meets ‘Floss­ing,’ it’s the per­fect storm of things!” said Jeanne Fromer, a pro­fes­sor at New York Univer­sity School of Law), they were gen­er­ally pes­simistic about the law­suits’ chances.

When de­cid­ing if a dance is el­i­gi­ble for copy­right, courts look at a com­bi­na­tion of fac­tors, in­clud­ing its level of cre­ativ­ity, its com­plex­ity or length, and whether the work was in­de­pen­dently cre­ated. You can’t copy­right a mu­si­cal note or a word, for ex­am­ple, but string enough of them to­gether and you’ve got a song you can own. In­di­vid­ual dance steps are like­wise not copy­rightable, ac­cord­ing to the copy­right of­fice’s rule book. And the dances tar­geted in “Fort­nite” are all quite short.

Hecht ar­gues that what’s used in “Fort­nite” are “the most iden­ti­fi­able, sig­na­ture as­pects of those orig­i­nal per­for­mances.” The fact that the dances are avail­able in­di­vid­u­ally for spe­cific prices — about $8 for the Fresh and $5 for the Floss, ac­cord­ing to the com­plaints — makes their sale es­pe­cially egre­gious, ac­cord­ing to Hecht.

Even if a dance is deemed long enough, there are other hur­dles. For ex­am­ple, the U.S. Copy­right Of­fice will not regis­ter what it calls a so­cial dance, like ball­room danc­ing or break danc­ing.

Thomas Kadri, a res­i­dent fel­low at the In­for­ma­tion So­ci­ety Pro­ject at Yale Law School, said that if “Fort­nite” has copied moves, “it does strike me as a lit­tle un­fair.”

But if ev­ery move could be copy­righted, he said, it could sti­fle the cre­ation of new work: “It be­comes very dif­fi­cult when ev­ery build­ing block of cul­ture be­comes some­body’s prop­erty in a way that can ex­clude peo­ple from us­ing it.”

A “Fort­nite” char­ac­ter dances. Three per­form­ers are su­ing the mak­ers of the video game “Fort­nite,” say­ing it is sell­ing their dance moves without their per­mis­sion.

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