Fortnite: Is it possible to sue for a dance move?

Alfonso Ribeiro and Backpack Kid are the latest names understood to be suing Fortnite for using dance moves they claim to have created.

Ribeiro is suing for his dance as Carlton in 90s sitcom The Fresh Prince Of Bel Air, while Backpack Kid – real name Russell Horning – is suing for “The Floss”.

The pair join a growing list of people, including rapper 2 Milly and Chance The Rapper, who have hit out at the game’s maker, Epic Games, for not crediting them for their dances.

In Fortnite, players are able to upgrade their online avatars with personalised objects and dance moves known as “emotes”.

Questions are now being raised as to whether it is possible to copyright dances, but Irving David, a partner at DWFM Beckman Solicitors, who specialises in media law and intellectual property, says that it is possible to sue under the Copyright, Designs and Patents Act 1988, as long as you have a copy of your original work.

“A work is entitled to copyright protection as soon as it is fixed in a material form,” he explained.

This means that as soon as an original work is recorded in the form of a video or written down in a dance notation, a person has automatic copyright protection, no matter whether the dance is famous or not.

The law would apply universally because of the Berne Convention, an international agreement governing copyright, and the copyright would apply until the end of the choreographer’s life plus 70 years, meaning heirs can benefit, Mr David added.

“I would assume that this matter will be settled and will not go to court… unless they can show that he himself infringed the work of somebody else prior to creating his own work, because you can’t get copyright if you yourself are an infringer,” he said.

Typically, game makers would obtain a licence to use copyrighted work, which could be the only way Epic Games prevents this type of issue occurring again.

Epic Games declined to comment.