It has recently been reported that Russell Horning (the Backpack Kid) and Alfonso Ribeiro (Carlton from the Fresh Prince of Bel Air) have sued Epic Games for using their dance moves in the computer game Fortnite.  Russell Horning is suing Epic for their use of “the floss” and Alfonso Ribeiro has issued proceedings against Epic for using the so-called “Carlton dance”. 

Russell Horning and Alfonso Ribeiro claim that their dance moves could be bought as an emote within Fortnite, which can be added to customise character avatars.  An emote is the dancing the Fortnite characters do within the game.  The game is free to play but the creators make money by selling dance moves and outfits to users. 

Copyright automatically arises on the creation of original literary, dramatic, musical and artistic works and lasts for 70 years after the death of the author.  The creator of the work is usually the first owner of the copyright in it.  Copyright protects against the copying of another’s work and the physical expression or representation of an idea, but it does not protect against independent development of the same idea.  Copyright ownerships allows the owner to prevent the unauthorised use of the work, such as making copies or uploading the work to the internet. 

In order to succeed in their Court proceedings against Epic, Russell Horning and Alfonso Ribeiro will need to prove they were the ones who invented the dances and therefore own the copyright to their dance moves.  This could be a problem for Alfonso who has made comments in the past about having “stole” his moves from an old Bruce Springsteen video.   

If Russell Horning and Alfonso Ribeiro can prove they invented “the floss” and the “Carlton dance” then it is likely that Epic Games will need to seek a licence from both Russell and Alfonso to have used and to continue using their “dramatic work”.  The “Fresh” emote which Alfonso is claiming against remains downloadable content in Fortnite meaning Epic Games would need to pay a licence fee for past and continued use.  Russell’s “Floss” Dance was only available for a limited period which means that Epic would not need to pay Russell Horning for ongoing use but may need to pay a licence fee for past use. 

Our specialist intellectual property solicitors in our commercial litigation and commercial departments regularly advise clients on copyright and other intellectual property issues.  Both teams are ranked as top tier in the legal directory Legal 500.  We have had a great deal of success in acting for both claimants and defendants where allegations of intellectual property infringements have been made.  If you need advice on copyright or other intellectual property infringements, then please do not hesitate to contact a member of the team today.