‘Fortnite’ and the legal dance battle royale

Another actor, “Scrubs” star Donald Faison, is not pursuing legal action. But he publicly accused the creators of stealing his unforgettable “Poison” routine.

“If you want to see it,” he told fans at Vulture Festival last month, “you can play ‘Fortnite,’ because they hacked that. [expletive]!”

“Scrubs” creator Bill Lawrence said the same “Fortnite” mob asked if it was legal to use Faison’s dance. Lawrence said yes: “It’s just a dancing character. ”

Is it so simple?

“Fortnite” is free, but they sell upgrades. Among them: “emotes,” or dances, players can purchase so their avatars can break victory moves when they win a fight. Some are free. Others cost between $2 and $10.

According to Nielsen’s SuperData, the game has grossed over $1 billion since October 2017.

But taking advantage of other people’s creativity is no reason to dance. And when the majority of those creatives are black, it plays into a systemic story of appropriation and exploitation.

Breai Mason-Campbell, activist and founder of the Guardian Dance Company in Baltimore, works to preserve and transmit African-American dance culture.

“You come across a slave ship and you’re not allowed to speak your language, you’re not allowed to bring your drum, you’re kidnapped and all you have is your body and you remember your life” , the former Boston dancer and said Harvard alumnus.

“Dance is our memory. Dance is our freedom, our power, our dignity, our chance to be celebrated for who we are and to celebrate who we are. Sometimes it seems like it’s the only thing we have, and being robbed just means that we’re not accepted as equals.

“Fortnite” doesn’t just use popular dances. He’s a culture vulture who makes free food from black bodies.

“African-American culture has been continually plundered with little or no recognition or compensation,” says Jonathan Square, writer and historian at Harvard University.

“I think you could say there are other ‘Fortnite’ dances that have been borrowed from people who aren’t black. But the appropriation and mockery of black dancing and other forms of expression has a long history dating back to Jim Crow minstrelsy. Many children will see these dances and attribute them to the programmers of “Fortnite” without realizing that its origins lie in the ingenuity of black creatives.

Like Ribeiro, who filed a lawsuit against Epic Games on Monday. “Fortnite” offers a “Fresh” emote for 800 v-bucks (about $8). But anyone who’s ever seen “The Fresh Prince of Bel-Air” knows him as “The Carlton,” an iconic combo engineered by Ribeiro, who played Carlton Banks.

I want to sing Carlton’s favorite song, “It’s Not Unusual” by Tom Jones, just by watching. And that’s the beauty of dancing. In my family and in the black community, dancing is as much a part of our communication as speaking.

It is a love language expressing love of self, love of others and love of the music we move to. It is a party. We do routines for birthday parties, gym jams, weddings and barbecues.

We see it in NFL touchdown dances, in the intrinsic grip we give in to when things are going well these days.

In this way, it makes sense that “Fortnite” wants to add “emotes” to its catalog of upgrades. But couldn’t they do that and also give credit to the creators? Morally, yes. Legally – trying to win a copyright case over dance moves isn’t an easy one, two, step.

Wendy Selzer, a lawyer and member of the advisory board of Harvard’s Berkman Klein Center for Internet & Society, says the protections are limited. The ordinary steps of a waltz or the plie of a ballet dancer cannot be copyrighted. A combination of these steps is not copyrighted.

“The question is whether a court would say that those few seconds of a dance routine are sufficient to be a copyrightable choreographic work,” Seltzer said. “I don’t want copyright to be used to block the creative reuse of dance. But when used for profit, from an ethical point of view, it would be good to see the creator share in the profits. There should be a credit obligation.

Epic Games changed the names of these dances to the “Fortnite” emotes, erasing the origins.

Snoop Dogg’s signature choreography from the “Drop It Like It’s Hot” video is the “Tidy” emote.

BlocBoy JB’s Shoot Dance, introduced in 2017 and one of the most popular dances of this year, is renamed “Hype” on “Fortnite”. And Epic recreated 2 Milly’s “Milly Rock,” a 2015 dance-based hit song, and called it “Swipe It.”


Much like Disney’s 2013 attempt to trademark “Día de los Muertos,” the name of a Mexican holiday, and the hit trademark of the Swahili phrase “Hakuna Matata” is cultural theft, the emotes that ” Fortnite” sells are pieces of our culture – steps we’ve practiced with our friends and moves we associate with songs, artists and magical moments in pop history.

Can we share and appreciate each other’s cultures? Yes. But there is a line that is crossed when credit is cleared and profits are made. Exploitation is real.

“Fortnite” isn’t the only offender. We see it in fashion, in the way Shudu Gram, the virtual black model of a white man, is used to gain influence. We see in social media, the way white women engage in “black fishing” – using makeup, self-tanners and enhancements to appear black and sharp offerings to this audience.

We see it in a lot of Kardashian things, where they get credit and compensation for things that black women have done long before them. We saw it with Nicki Minaj’s “Chun-Li” and Gwen Stefani’s “Harajuku Girls.” And appropriation debates around Awkwafina’s “blaccent” as Peik-Lin in Coldplay and Beyoncé’s Indian-inspired “Crazy Rich Asians” and “Hymn for the Weekend.”

“It is wrong to steal culture. At some point, we have to recognize how capitalism sustains and sustains the mistreatment of people. If we’re going to work our way to racial reconciliation, ethnic reconciliation, we have to respect the culture,” Mason-Campbell said. “If you sell culture, it costs money. It is intellectual property. We don’t call it ‘The Carlton Dance’ for nothing.

Unfortunately, it’s not uncommon to love the culture and not the people.

Jeneé Osterheldt can be reached at [email protected] and on Twitter @sincerelyjenee.