Matpat: Have you heard that kids are apparently so addicted to Fortnite that their parents are sending them to rehab? Wonder what that one's like...?
*dream sequence dream sequence dream sequence dream sequence**fades out*
*silence*
*thunder crack*
*eerie music plays*
* inaudible slamming/banging noise*
*Poor jack....*
*video game sounds*
*jumpscare noise*
Matpat to Doctor: You monsters, you're just tying them to a chair and forcing them to play awful games forever!
Doctor to Matpat voice: Your room awaits, Mr. MatPat.
*door opening creak*
Matpat, frightened: No... No! No! Not again. NO!
No, no anything, but that! it was over! *sobs* It was supposed to be over! *music turns more dramatic*
*ominous sound*
* Game Theory Intro Music Plays*
Hello Internet!
Welcome to Game Theory. Offering free legal advice to multi-billion dollar game-
manufacturers since 2011. And if you think that's a joke,
Well, think again. I covered PUBG suing Fortnite six months ago on June 17,
ultimately concluding that PUBG's case against Fortnite was ultimately destined for failure.
*boom* 10 days later, PUBG dropped the lawsuit after pursuing it for MONTHS.
Coincidence? Maybe, I'll let you be the judge. Seriously, though,
if it isn't, *chuckle* I should really start considering billing by the hour.
But now, here we are, six months later, and it looks like I have to put on my best Phoenix Wright impression yet again.
Oh sure, in that stretch of time there have been all sorts of updates to Fortnite:
magic purple cubes, trips outside of the matrix, a whole new creative mode introduced!
But the biggest news is that Fortnite is stepping back into *thump/boom* the legal arena yet again.
Here's the situation: Fortnite makes a lot of money. A LOT, a lot, of money.
In the single month of May,  Fortnite made 318 million dollars.
As of this past June it's made over a BILLION dollars, and that money is coming in mostly off the backs of in-game purchases.
In fact, about 70% of players say that they've spent money on in-game content with the average spend just being under 85 bucks.
*mutters* Not bad for a free game.
Now most of that money's been going to outfits and new characters; new gliders new harvesting tools,
but a solid 10% of those purchases have been for emotes: Short gestures, or dances, to give your in-game avatar more personality.
And with the omnipresence of Fortnite *boom* as a cultural phenomenon, these emotes are EVERYWHERE!
I've seen kids out in the parking lot of Soup Plantation-flossing, and I don't mean for their dental health.
I've seen them in department store mirrors practicing the Hype.
Of course there was this Guinness World Record performance at TwitchCon, even marching bands at the Macy's Thanksgiving Day Parade
laid down their instruments to dole out some Orange Justice!
Tell you what I was thankful for that that moment was slightly less cringy than Al Roker trying to pronounce Dragon Ball Z names.
Al Roker: Funimations Brings us the earth's mightiest warrior,
Goku, featured here in his
super Cyan (Sayan) blue form.
Matpat: One look at all these dances and regardless of whether you're cringing or you're joining in, they immediately and iconicly scream Fortnite.
The problem is though, they're not originally Fortnite's creations.
Many of these emotes are dances that have existed for years.
Moves that Epic Games straight up lifted, programmed into their game,
renamed, and now sell to millions of players around the world. No credit to the original creators and-
definitely no money headed their way. To set up just how direct Epic's ripoffs really are-
let me just show you some of the moves that inspired Fortnite. Fortnite's Groove
Jam has its origins with the 2004 hit movie Napoleon
Dynamite. The Default Dance emote actually has its origins a few years later in-
2006 with the classic comedy Scrubs. And Fresh dates even further back in sitcom history to the-
Carlton Dance from 'Fresh Prince of Bel-Air', which ran from 1990 to 1996. First appearance of the Carlton Dance-
1991. Then from the music scene-
you got yourself a lot of obvious ones like Ride The Pony being 'Gangnam Style', Tidy Snoop Dogs'-
"Drop It Like It's Hot', and Floss, as we all know by this point, was from the backpack kid Russell Hornings
May-
2017 appearance on Saturday Night Live with Katy Perry. Oddly still named the Floss in the game for some reason. But even stuff-
like Hype actually dates back to Block Boy JB's 2017 'Dance the Shoot'.
But all of this questionable ownership finally came to a head with Swipe It-
a re-branded version of the 2014 dance hit the Milly Rock, whose creator 2 Milly decided to start a legal case against Epic Games
a case that's now been joined by Alfonso Reberia, the actor who played Carlton in Fresh Prince of bel-air and-
popularized the original fresh dance as well as-
Backpack kid. So with three major lawsuits headed their way, and potentially a lot more I have a question:
Is Fortnite in trouble? Are these performers going to be able to squeeze-
millions of dollars out of Epic Games and in turn forever change the games emote system? And the single most-
important question of all: should the Orange Shirt Kid sue too? I mean, after all, Orange Justice is his creation.
Maybe it's time for our favo(u)rite viral choreographer gets himself some real justice. Some real-
Orange legal Justice (ba dum tss). Also, with a heaping helping of monetary justice on the side.
Ladies and gentlemen strap in 'cuz today in the words of Cypher, "We're doin' an educational commentary." Unlike other art forms-
dance has a very 'it's complicated' relationship with Copyright Law with all other art forms.
It tends to be pretty cut and dry; you create it and it's yours. You design that snake girl tattoo, yours.
You took that photo in the Grand Canyon, yours. You drew that floppy nosed Crab Elephant, yours, by the way-
I know I just made fun of it, but that last one is actually a masterpiece work of art that is currently worth-
2.2 MILLION DOLLARS! Art is-
so dumb.
Long story short; where things start to get murky when it comes to traditional art work is with-
Transformative Use and Fair Use, something that I've already covered plenty both here and on Film Theory. (Go Subscribe.)
But dance and Copyright Law, despite dance being around since the caveman first discovered that they could twerk, have a shockingly new-
relationship, with choreography only being able to be copyrighted as recently as-
1976, before that, dance could only be protected if it was classified as a dramatic work. A piece that-
actively developed characters.
This was most commonly seen through Ballet and Musical Theater. In order to perform George Balanchine's-
'The Nutcracker', for example,
you must explicitly state that you are performing George Balanchine's version of 'The Nutcracker' and then perform the moves
exactly as he choreographed them. The dance tells a story. It develops characters and it has movements-
specifically tied to emotional cues, in turn meeting all the requirements for a dramatic-
work. But a lot of dance, especially modern dance, wouldn't qualify.
It's just weird. Dance can get really, really obscure. But now with the new-
1976 Act, all you really need to do to copyright a dance piece is some combination of quote-
'Rhythmic movements of one or more dancers bodies in a defined sequence.' 'Organized patterns into an-
integrated coherent and expressive whole.' Bonus points if you include a story or a theme,
performing in front of an audience, and if there's music or text underneath it. So based on those guidelines-
it seems like it should be an open-and-shut case right? Hype, or should I say The Shoot Dance, is clearly a-
combination of multiple moves: the hopping leg, the kick, the fist bump, and the thrusting arms all done in a very-
rhythmic pattern and in a specific sequence.
Groove Jam may not follow the exact pattern of moves that Napoleon Dynamite does in the movie,
but it's obviously really close. And all the moves-
they see performed are ones that were in that original choreographed piece. And the default dances perhaps the best example of all of them.
It's actually a really complex series of moves. From the Running Man beginning, to the legs come together, the clap, the point, crossed arms-
all replicated one for one from the Scrubs dance that you see in the episode.
So it seems like Orange Shirt Kid should probably rocket ride his way to the nearest lawyer, right?
Yay for justice, the little guy wins his money back from the greedy Corporate Overlord, but hold on to those dancing shoes.
Here's where it starts to get tricky.
You see the same Act of 1976 expressly states that:
'Social dances and common moves can't be copyrighted.' Calling out things like line dances, ballroom dances and-
celebratory endzone dances that you see football players perform, and this makes sense for a lot of reasons. First,
copywriting an individual move like the Moonwalk would be like the equivalent of granting ownership over an individual word or-
musical note. All of these things are building blocks to a complete book or a full song or a fully choreographed dance,
but you can't let people own the individual building blocks-
otherwise, you can't build them up to something bigger and longer.
Secondly,
if you allow copyright over a social dance like say the Macarena or The Electric Slide then every wedding dance video ever produced and-
uploaded would be subject to copyright claiming and no one should be profiting off-
my best friend's cringy dance moves at my wedding BUT ME. But here's the biggest challenge with any of this.
How do you define the original creator? For instance, Backpack Kid claims that he created this dance and is suing Fortnite for exactly-
that reason. But the Floss goes back so much earlier than he does.
The first video of his doing the floss is from August 18th 2016 on his Instagram.
But before that a YouTube prank channel named 'Jay Stu Studios' was doing a very similar trick in their video-
'Look What I Can Do'. So then did Jay Stu originate the dance?
Nope, because it goes back even further to this one kid in the background of a One Direction-
lip-sync video. Way back when that would have been relevant:
2012. And that to most of the Internet is where it stops.
But I was actually able to go back even one layer further to a 2011 video simply titled 'The Mashed Potato Man'.
So forget calling this thing the Floss or even the Backpack Kid dance this dance-
shall henceforth be called The Mashed Potato. *music*
Oh yeah Backpack Kid person who says he originated this dance.
It also doesn't help your case against Fortnite when you go online and say things like this: 'Ever since I put it in the game-
the dance has-
gotten bigger and bigger ever since so it's pretty cool that I put it in.' Same thing applies with the Fresh dance the actor outright-
claims that he stole the idea from the Eddie Murphy White Man dance combined with this moment from the official 'Dancing In The Dark' music-
video. As he says himself in this video posted by TMZ, 'I would Carlton Dance *something unaudible* I'mma steal it.'
So... You guys might wanna call off those lawsuits friends. Other channels who've covered this issue say things like 'Well-
it's unclear. It's a bit too close to say.' But that's the cheap way out friends. Here's the straight-
talk. Fortnite is very obviously in the clear here.
Either your dances are too simplistic as is the case with the Millie Rock and the Shoot.
They're too social like Ride The Pony and Twist or if you just don't outright own the dance like the Floss or Fresh.
Orange Shirt kid save yourself some legal fees, ya ain't gonna win this one.
But just because it looks like most of them are gonna lose their case,
doesn't mean that Fortnite is entirely in the clear here. Not all emotes are created equally, here's what I mean. Yes-
most of the Fortnite dances are gonna be protected as social dances. That said I don't think all of-
them will be. Based on the law, as it's written, the Default Dance and Groove-
Jam have a pretty decent shot of getting flagged for abuse of copyright. Consider this; both of them are-
complex series of multiple movements rather than one simple move repeated multiple times. Both of them were publicly displayed-
the first one was on the TV show 'Scrubs 'and the second one was the-
climax of the major motion picture 'Napoleon Dynamite'. Both of them expressed the-
personality of the respective character who performed them in the original productions and both were copied by Fortnite pretty darn close to verbatim.
They're not really social dances and are much more akin to a choreographed piece.
So my verdict, based on the evidence, is that I think Fortnite, if those dances are indeed challenged, will have to make some major changes.
To at least those two. And the ripple effects from that decision will apply to games far beyond Fortnite.
Bungie has been putting copied dance moves as emotes into Destiny too long before this issue ever blew up.
Inserting the Single Lady's iconic Ring Dance into the Destiny world. So far,
this has skated-
largely under the radar. But in the aftermath of this Fortnite decision, that dance will have to bite the dust in the game. NBA-
2k has also inserted a lot of popular dance moves as emotes, but in their case, it's just that. Dance. Moves.
None of the moves are so elaborate that they would really constitute a fully choreographed routine, so those probably will end up-
okay.
And so on and so on, game to game , down the line. The last issue at play here though isn't just monetary, but credit. Creators like-
2 Millie are upset that their dances are being 'rebranded' by Fortnite, so not only is the company-
profiting off the contributions of the original creators, many of whom come from the hip hop community,
but they're also erasing the original ownership from history. But here's the thing here;
nothing will change on that front.
Well-
it's nice to think that Epic Games might out of the goodness of their heart keep the original names of these dances or cite the-
creator's who popularized them in the game UI the Backpack Kid example illustrates-
just how impossible it is to track it back to the original creator of a dance. The long and short of it-
is that sure, most of these cases will be thrown out in court.
But they are super important because these are the first cases of their kind since dances became copyrightable in-
1976. No one has actually made the court define what constitutes a social dance so the law is a bit overdue on that front.
But in this particular case, at the end of the day, the only one who's gonna be-
taking home the v bucks, is Fortnite.
There's a reason they call it starving artists. But hey, that's just a theory. A Game-
Theory! Thanks for watching.
*faint upbeat music*
