Now this is a story all about how... IP got twisted upside down

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10 January, 2019

We are all familiar with the popular American sitcom 'The Fresh Prince of Bel-Air,' a show that infected the 90's around the world. Yet recent events are scheduled to unleash a 'can of worms' for America's intellectual property law and potentially further afield.

Fresh Prince of Bel-Air star Alfonso Ribeiro, formerly known as Will Smith's cousin 'Carlton', is set to sue popular online video game Fortnite. Fortnite allow their players to perform his infamous 'Carlton dance' whilst playing the game, marked with hashtags, using an emote call 'Fresh'. The emotes are sold to players from anywhere between $5 and $10.

Having filed a lawsuit in California, Mr Ribeiro believes that the video game has unfairly profited from his 'creative expression, likeness and celebrity'. Ribeiro is asking the California Federal Court to award damages and stop the game developers from selling or using the dance. He is also in the process of attempting to copyright his dance in the US.

In addition to the commotion, Russell Horning, who is otherwise known as the 'Backpack Kid', has also filed a lawsuit against the video game. Russell became famous for his 'floss dance' which he performed with Katy Perry during a live show on SNL. Another artist, a rapper called 2 Milly, whose real name is Terrance Ferguson, was first to file a lawsuit against Fortnite for also using his signature dance. Chance the Rapper pressed this accusation further by criticising the makers of Fortnite of exploiting the art of black performers for their own financial gain.

American courts now face an uncertain and difficult question: can you copyright a dance? In America most dance moves do not fall within the realms of copyright law because they are not considered to be choreography. Individual dance moves, such as the Macarena and the worm have traditionally been left out of copyright protection in favour of individuals' freedom of expression. It is worth noting however, that this has never been challenged in an American court before now.

Fundamentally, the claims depend on whether Fortnite's 'emotes' are violating a copyright of a 'work of art', and additionally whether the game is capable of appropriating someone's likeness and character. Although these claims are separate from one and other, if either prove to be successful, Fortnite would be required to engage in licensing deals for all the dance moves that they have used as well as costing them a significant pay out in damages.

It is clear from the emergence of the above lawsuits that America's intellectual property law, governed partly by the Copyright Act 1976, never anticipated the emergence of such video games and 'emotes'. Similarly, there is no definitive case law to guide lawyers or provide clarity. In light of this, the entire outcome depends on the application of the law before the Californian Federal Court. And if successful, where will the line be drawn? There is a concern over whether the so call 'flood-gates' will open leaving America in a litigation crisis.

So what does all this mean for the UK? Essentially, its impact will be nominal and copyright law will continue to operate as normal. This case does however highlight the importance of up to date legislation and the significance of Judicial decision making. For the time being UK intellectual property lawyers can sit back and enjoy the show… for now at least.

Forbes regularly advises on all matters relating to copyright and IP law.

For more information contact John Pickervance in our Commercial department via email or phone on 0333 207 1134. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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