"A lawsuit has been filed on behalf of Russell Horning, aka the Backpack Kid, against a video game company, alleging they breached his copyright for including his signature dance move 'flossing' in their wildly popular game Fortnite," The Guardian reports. "Horning, 16, is credited with popularising 'The Floss', and became famous when he did the dance on Saturday Night Live during a performance by Katy Perry in 2016."
I don't know the copyright cases about dancing, but shouldn't the choreographer own whatever copyright there might be — not the performer?
December 19, 2018
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This here's a tail for all the fellas
Tryin; to do what those ladies tell us
Get shot down cause ya over-zealous
Play hard to get females get jealous
Okay smarty go to a party
Girls are scantily clad and showin; body
A chick walks by you wish you could sex her
But you're standing on the wall like you was Poindexter
Next days function high class luncheon
Food is served and you're stone-cold munchin'
Music comes on people start to dance
But then you ate so much you nearly split your pants
A girl starts walking guys start gawking
Sits down next to you and starts talking
Says she wants to dance cause she likes to groove
So come on fatso and just bust a move
He violates my The©.
I've also patented bipedal movement and opposable thumbs.
'Fresh Prince' star Alfonso Ribeiro sues Fortnite over use of dance his character Carlton popularized.
Dance emotes in games have been around for ages, but this is happening now because Fortnite is insanely popular and raking in absurd sums of money by selling these dances. People wanna get paid.
He'd have to give it up if he wanted to do business in China.
It's a popular Ladakhi dance move anyway
https://www.youtube.com/watch?v=tVAU52G7ork&feature=related&gl=GB&hl=en-GB
Akin to developing a new breathing technique?
This move's called the Bender. Everybody do the Bender.
https://www.youtube.com/watch?v=n29CicBxZuw
Mr. Pudey: Well sir, I have a silly walk and I'd like to obtain a Government grant to help me develop it.
Minister: I see. May I see your silly walk?
Mr. Pudey: Yes, certainly, yes.
(He gets up and does a few steps, lifting the bottom part of his left leg sharply at every alternate pace. He stops.)
Minister: That's it, is it?
Mr. Pudey: Yes, that's it, yes.
Minister: It's not particularly silly, is it? I mean, the right leg isn't silly at all and the left leg merely does a forward aerial half turn every alternate step.
Mr. Pudey: Yes, but I think that with Government backing I could make it very silly.
Don't laugh.
Choreography is copyrightable. It can be documented with dance notation and submitted for copyright.
Who should copyright the dance is fuzzy, because while the choreographer may have come up with the general dance moves, the dance might be valueless without the accompanying music--which itself is copyrighted. We now have music videos where the video, the dance, and the music are all one unified copyrightable work of art.
https://www.youtube.com/watch?v=4m1EFMoRFvY
So if the musicians and the choreographer aren't one and the same, the dance moves couldn't be copyrighted unless the composer of the music was included or gave his permission.
"The Floss." Rather complex. Well, there goes Nureyev's legacy.
sinz52: So if the musicians and the choreographer aren't one and the same, the dance moves couldn't be copyrighted unless the composer of the music was included or gave his permission.
Unless I'm mistaken, this dance does not have any specific associated music.
Copyright must be fixed. So, no, he doesn't have copyright. Plus it's a basic dance move people have been doing for generations. He didn't create it.
May I take it from this reasoning that football plays and defenses can now be copyrighted?
Probably just hoping the developers of Fortnite have a slush fund to pay people to go away,m rather than lawyers on retainer to make them go away.
sinz52 said...
Don't laugh.
Choreography is copyrightable.
The written notation of a choreographed performance may be copyrightable, but that doesn't mean the particular movements within a choreographed work are. Nobody owns the pirouette, nobody owns the hip shake, and nobody owns the floss.
There is a document that outlines what can and can't be copyrighted in choreography. Like most such documents, it is vague and very open to interpretation (i.e. written to generate lots of court cases and associated fees). It is plausible that the "floss" and the "Carlton" aren't complex enough to be copyrighted. In the case of the "Carlton", didn't he do it first for a TV show? In that case it might be a work for hire and the producers own it, since that is where it was first fixed in a tangible medium.
https://www.copyright.gov/circs/circ52.pdf
Wouldn't the production company or network (or whoever owned Fresh Prince) own the copyright on anything Ribeiro did on film for the show? Do the actors' contracts not have a "work made for hire" clause? Could he now sue them for copyright infringement for syndicating /rerunning the show?
Edmund, beat me to it!
Looks like that in-car food reviewer.
Giving "intellectual property" a bad name since 2016.
It is all about MONEY...
But since they want to copywrite things I will copywrite this!
ABCDEFGHIJKLMNOPQRSTUVWXYZ!!!
Now... show me the money!!
I wonder how that "Don't taze me bro!" thing worked out. Did I get Althouse in trouble for using it in the comments?
O body swayed to music,
O brightening glance,
How can we know the dancer from the dance?
Doesn't the ADA own the rights to the name?
Did Alizée get paid for the WoW Night Elf dance? Because it was 100 times better.
Copyrights are good for the life of the author plus 70 years.
Are you telling me we'll have to watch this "kid" with an exclusive right doing this dance for the indefinite future still wearing the same chintzy back pack well into middle age and beyond?
Poor Sonny Bono, and what was done in his name.
1. Since when can you copyright a performance of a dance?
2. Fortnite earns Epic Games over $200M/month in revenue, and they've dealt with much more substantive lawsuits than this before. Do these folks have any idea what they're getting themselves into?
This merits the tag 'lawsuits that deserve to fail'.
So I'm in agreement with others that note it is Fortnite's success that is bringing on these lawsuits. Everyone wants to put there hands in deep pockets with lots of money. However, I saw the story about Ribeiro suing yesterday. He's done the "Carlton" for Dancing with the Stars and taught others to do it. But when you look at the Fortnite dance with Ribeiro's actual dance; yeah they just copied it directly. You see comparisons here and skip to 1:42 to see "Fresh".
I'm no lawyer and don't know copyright law, but this looks at least like plagiarism. Also, Fortnite is free to play, but makes money by selling these "dances" as add-ons. So they are making money off of others ideas. I note Althouse didn't use "lawsuits that deserve to fail" tag, and I do think there is merit to be investigated here.
What's with the starvation look? Seems like the current style among the young and I think it is just bizarre.
The best line is the last: "When your mom tries to look cool."
Didn't Bobby Darin assert ownership of "Mac the Knife" a few years ago? Bertolt Brecht, Kurt Weill, and Lotte Lenya could not be reached for comment.
It's not the dance that's copyrighted, it's the complete performance.
This is like creating a new word, trademarking it, and suing for someone writing a book and using it.
Didn't Bobby Darin assert ownership of "Mac the Knife" a few years ago?
What's your definition of "a few years"? He died in 1973. (45 years ago tomorrow.)
People say I look and walk like Mr. Bean.. but no!!!! Mr. Bean just looks and walks like me!
Show me the money!!!
“Copyright must be fixed. So, no, he doesn't have copyright. Plus it's a basic dance move people have been doing for generations. He didn't create it.”
Still working through the rest of it, but fixation in a tangible medium is an extremely low bar. Videotaping it, as was done here, is clearly sufficient fixation. Things get iffy if something is stored for a short period of time in computer RAM. Interestingly, loading into RAM is sufficient fixation, but not the human memory, despite the former being lost in a power loss, but the later somewhat surviving death of sorts (such as a heart stopping, or unconsciousness).
“But since they want to copywrite things I will copywrite this!
ABCDEFGHIJKLMNOPQRSTUVWXYZ!!!”
At a minimum, you would have to show independent creation. While that can sometimes be hard to refute, graduating from, say, the first or second grade would be expected to have exposed you to our alphabet. Or even maybe viewing Seseme Street, and if access is shown, or shown to have been probable, then substantial similarity only need be shown to legally impute copying, thus negating independent creation.
“The written notation of a choreographed performance may be copyrightable, but that doesn't mean the particular movements within a choreographed work are. Nobody owns the pirouette, nobody owns the hip shake, and nobody owns the floss.”
Again, the big problem is independent creation.
“Wouldn't the production company or network (or whoever owned Fresh Prince) own the copyright on anything Ribeiro did on film for the show? Do the actors' contracts not have a "work made for hire" clause? Could he now sue them for copyright infringement for syndicating /rerunning the show?“
First thing to determine is whether someone is an employee or contractor. An employer is considered the legal author of any original expression fixed in a tangible medium created by its employees within the scope of their employment. If not an employee (for example, using IRS or DoL definitions), then a contractor may have claim to the works of original expression of its contractees if there is a formal agreement to such (your Work For Hire Clause), AND the work falls into one of a small number of classes (which luckily here includes motion pictures). Otherwise, the author is the person creating the work of original expression, and you had better have an assignment (preferably also with a duty to assign, because at least one court has determined that you can’t assign something that doesn’t yet exist).
Bruce Hayden said...
"At a minimum, you would have to show independent creation. While that can sometimes be hard to refute, graduating from, say, the first or second grade would be expected to have exposed you to our alphabet. Or even maybe viewing Seseme Street, and if access is shown, or shown to have been probable, then substantial similarity only need be shown to legally impute copying, thus negating independent creation."
Well no... my therapist says I have flashbacks of a previous life and I invented them! And we all know past life regression therapy is rock solid! The science is settled! Don't be a science denier!
I'd say this is crazy, but after the "Blurred Lines" decision, I don't think you can all any copyright claim crazy.
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