Fortnite in multi-way dance battle

Fortnite (or rather its owner, Epic Games) is no stranger to lawsuits. We have reported previously that it was sued by the makers of Player Unknown's Battlegrounds for various alleged copyright infringements. That matter ultimately settled quite early. Epic will be hoping that the new claims against it are similarly settled, as otherwise it faces the risk of significant pay-outs.

One of the lawsuits is over the allegedly unlawful use of "The Floss" in Fortnite. The Floss is, quite obviously, a move that is more commonly known as "Flossing" which was first performed by teenager Russel Horning. Horning 'went viral' following his first Instagram videos showing off the move, and it has given him a huge online following and garnered invitations to appear and perform on lots of television shows.

But "The Floss" isn't the only dance allegedly appropriated by Epic in Fortnite. Rapper 2 Milly has also filed a lawsuit for its use of the Milly Rock, which featured in several of his music videos and was certainly made famous by him. He is joined by Alfonso Ribeiro of Fresh Prince of Bel Air fame who is suing over the inclusion of "The Carlton" without permission.

If you're unfamiliar with any of those moves, we suggest a quick online search as no description can truly do them justice.

All three claims are proceeding separately and face similar barriers in law. Should they be successful it will likely open up other video game producers who have included such dances in their games. One is already the subject of litigation, the NBA2K18 basketball game where players who score perform signature dance moves. It is possible that the reason Epic has been targeted first is that the dances are a purchasable addon in game (via microtransactions) and so it should be easy to quantify exactly how much money Epic has made from each dance.

That will only become relevant to the litigation if liability is established, which given the complex nature of copyright litigation is by no means certain.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.