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By: Alex Nelson

Fortnite is a large-scale multiplayer video game which allows 100-players to battle against each other as they race to find weapons, build structures to protect themselves, kill the opposition, and become the last person standing. For the non-gaming community, Fortnite is still worth paying attention because it is a cultural phenomenon amongst the younger generations. From June 2018 to March 2019, 125 million new players registered for Fortnite, putting the total number of registered players at nearly 250 million. Fortnite is free to download and play but includes a great deal of in-game purchases. Even though the initial game is free, these in-game purchases can provide a staggering $203 million in profit per month.

Most of the in-game purchases are merely cosmetic but even something as trivial as what dance a player’s avatar can perform has resulted in major controversy. The dance moves that players can select in-game have become points of cultural significance, especially for younger generations. Antoine Greizman, a famous soccer player for Atlético Madrid, performed a dance he had seen on Fortnite after the club’s Europa League final win. With the popularity and clear monetary value of the dances featured in Fortnite, there have been multiple lawsuits filed by the alleged “creators” of the dances in order to get compensation for what they claim is copyright infringement. While it is unlikely that the claims of copyright infringement will be successful, they may instead be successful in alleging a right of publicity violation against the creators of Fortnite. For example, one of these potential plaintiffs is the “Backpack kid,” whose dance move “The Floss” became a viral hit. The “Backpack kid” is heavily associated with the dance itself as he was the one to perform it on a widely circulated SNL skit with Katy Perry. By just searching the web for “The Floss,” almost every image that appears on Google Images is of the backpack kid.

The “Backpack kid” and other such plaintiffs in suits against Fortnite could possibly succeed on a right of publicity action rather than a claim of copyright infringement. The Supreme Court has held that video games are entitled to the full protections of the First Amendment just like other artistic mediums. The Court’s reasoning was that video games, like protected books, plays and movies that preceded them, communicate ideas – and even social messages – through many familiar literary devices such as characters, dialogue, plot and music. The elements of a right-of-publicity claim under California common law are: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. A potential issue with the use of “The Floss” in Fortnite is whether the game’s developers featured the dance to advertise the game. Although Fortnite itself will likely be viewed by the court as expressive speech, if the court finds that the dance was used in advertisements for the game then that could be viewed as commercial speech and thus within the scope of right of publicity law.

Ultimately, the plaintiffs in the various lawsuits against Fortnite developer, Epic Games, would stand a better chance of success on the merits if they focus on right of publicity claims rather than copyright infringement. The dances at issue are unlikely to be protected under copyright because they are social dances rather than formalist choreographed dance. Critical to this distinction between choreography and social dance is the identity of the intended participants. While choreography is intended for skilled dancers to perform for the general public, social dances are intended to be danced by the general public. Therefore, dances like “the Floss” are unlikely to receive copyright protection and so potential plaintiffs will likely fare better if they pursue right of publicity actions instead.