Five lawsuits against Fortnite developer Epic Games are on hold as the law firm behind them waits for the US Copyright Office to consider applications. All five suits — filed by Fresh Prince of Bel-Air star Alfonso Ribeiro, Russell “Backpack Kid” Horning, the unnamed Fortnite fan known as “Orange Shirt Kid,” and rappers Terrence “2 Milly” Ferguson and James “BlocBoyJB” Baker — all claim Epic unlawfully used dances they invented as Fortnite emotes. But they’re temporarily dismissing their complaints, apparently because of a change in how courts process copyright lawsuits.
In a statement earlier this week, law firm Pierce Bainbridge said it was withdrawing because of a recent Supreme Court decision that requires people to get a response from the US Copyright Office before suing over an application they’ve submitted. The earlier suits “were filed under the previous standard,” it says, and “to best conform with the law as it stands in light of the Supreme Court decision, our clients will dismiss their current lawsuits and refile them.” Before the Supreme Court decision, the firm also dismissed a similar suit by Ribeiro against Take-Two Interactive.
There’s still at least one dance lawsuit standing, since a separate firm sued Epic over putting the “Running Man” dance in Fortnite. But we might not see movement in the other cases for months, and the US Copyright Office is far from guaranteed to approve the copyright applications involved. Pierce Bainbridge says it’s successfully registered filings from Backpack Kid and Orange Shirt Kid, but the office rejected an application from Ribeiro, something the firm is currently contesting.
According to US copyright law, individual dance steps can’t be protected, but choreographic routines can — and there’s not much case law establishing a clear boundary between the two. Epic’s dance emotes are only a few seconds long, but they’re clearly recognizable copies of (very) short routines created by other people. With these lawsuits withdrawn, the next important step might be taken by the Copyright Office.