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‘Fortnite’ and the legal dance battle royale

With more than 200 million registered players, Fortnite is a game of world-building and post-apocalpytic battles and cultural appropriation.
With more than 200 million registered players, Fortnite is a game of world-building and post-apocalpytic battles and cultural appropriation. (Mark Gartsbeyn)

Play it or not, “Fortnite” is one of the most popular games in the world.

With more than 200 million registered players, it’s a game of world-building and post-apocalyptic battles . . . and cultural appropriation.

That’s right, even “Fortnite” is a problematic fave. Everyone from Alfonso Ribeiro of “The Fresh Prince of Bel-Air” to rapper 2 Milly to Instagram star Backpack Kid is suing “Fortnite” creator Epic Games for stealing dance moves they created or popularized, using them for the game played around the world.

Another actor, “Scrubs” star Donald Faison, isn’t taking legal action. But he has publicly accused the creators of stealing his unforgettable “Poison” routine.


“If you want to see it,” he told fans at the Vulture Festival last month, “you can play ‘Fortnite,’ because they jacked that [expletive]!”

“Scrubs” creator Bill Lawrence told that same crowd “Fortnite” asked whether it was legal to use Faison’s dance. Lawrence said yes: “It’s just a character dancing.’ ”

Is it that simple?

“Fortnite” is free to play, but they sell upgrades. Among them: “emotes,” or dances, players can buy so their avatars can bust victory moves when they win a fight. Some are free. Others run $2 to $10.

According to Nielsen’s SuperData, the game has made more than $1 billion since October 2017.

But profiting off the creativity of others is nothing to dance about. And when the bulk of those creatives are black, it plays into a systemic history of appropriation and exploitation.

Breai Mason-Campbell, activist and founder of Guardian Dance Company in Baltimore, works to preserve and pass on African-American dance culture.

“You come across on a slave ship and you aren’t allowed to speak your language, you are not allowed to bring your drum, you are kidnapped and all you have is your body and you remember your life,” the former Boston dancer and Harvard alumna says.


“Dance is our memory. Dance is our freedom, our power, our dignity, our opportunity to be celebrated for who we are and to celebrate who we are. Sometimes it seems like it’s the one thing we own, and to have that stolen just keeps underlying that we are not accepted as equals.”

“Fortnite” isn’t just using popular dances. It’s a culture vulture making free food out of black bodies.

“African-American culture has been continually plundered with little or no acknowledgment or compensation,” says Jonathan Square, writer and historian at Harvard University.

“I think one could argue that there are other “Fortnite” dances that were borrowed from people who are not black. But the appropriation and mockery of black dance and other forms of expression have a long history that dates back to Jim Crow minstrelsy. Many kids will see these dances and attribute them to “Fortnite”’s programmers without realizing its origins lay in ingenuity of black creatives.”

Like Ribeiro, who filed a case against Epic Games on Monday. “Fortnite” offers a “Fresh” emote for 800 v-bucks (about $8). But anyone who has ever seen “The Fresh Prince of Bel-Air” knows it as “The Carlton,” an iconic combo crafted by Ribeiro, who played Carlton Banks.

I want to sing Carlton’s favorite song, “It’s Not Unusual” by Tom Jones, just watching. And that’s the beauty of dance. In my family and in the black community, dance is as much a part of our communication as talking.


It is a love language expressing love of self, love of each other, and love of the music we move to. It’s a celebration. We make routines for birthday parties, gym jams, weddings, and cookouts.

We see it in NFL touchdown dances, in the intrinsic sway we give into when things go well in our day.

In that way, it makes sense “Fortnite” would want to add “emotes” to its catalogue of upgrades. But couldn’t they do that and give credit to the creators, too? Morally, yes. Legally — trying to win a copyright case surrounding dance moves is no easy one, two, step.

Wendy Seltzer, a lawyer and advisory board member of Harvard’s Berkman Klein Center for Internet & Society, says the protections are limited. The ordinary steps of a waltz or a ballet dancer’s plié cannot be copyrighted. A combination of those steps isn’t copyrightable.

“The question is whether a court would say these few seconds of a dance routine are enough to be a copyrightable choreographable work,” Seltzer says. “I don’t want copyright to be used to block creative reuse of dance. But when it is used for profit, as an ethical matter, it would be good to see the creator share in the profit. There should be some obligation to give credit.”

Epic Games changed the names of these dances for the “Fortnite” emotes, erasing the origins.


Snoop Dogg’s signature choreography from the “Drop It Like It’s Hot” video is the “Tidy” emote.

BlocBoy JB’s Shoot Dance, introduced in 2017 and one of this year’s most popular dances, is renamed “Hype” on “Fortnite.” And Epic recreated 2 Milly’s “Milly Rock,” a 2015 hit song based on the dance, and called it “Swipe It.”


Much like Disney’s attempt in 2013 to trademark “Día de los Muertos,” the name of a Mexican holiday, and successful trademark of the Swahili phrase “Hakuna Matata” is cultural robbery, the emotes “Fortnite” sells are bits and pieces of our culture — steps we’ve practiced with our friends and moves we associate with songs, artists, and magic moments in pop history.

Can we share and appreciate the cultures of others? Yes. But there’s a line that is crossed when credit is erased and profits are being made. Exploitation is real.

“Fortnite” isn’t the lone offender. We see it in fashion, in the way Shudu Gram, a white man’s virtual black model, is used to garner influence. We see in social media, the way white women are engaging in “blackfishing” — using makeup, self-tanner, and enhancements to appear black and net deals for that audience.

We see it in many things Kardashian, where they are given credit and compensation for things black women did long before them. We saw it with Nicki Minaj’s “Chun-Li” and Gwen Stefani’s “Harajuku Girls.” And appropriation debates around Awkwafina’s “blaccent” as Peik-Lin in “Crazy Rich Asians” and Coldplay and Beyoncé’s India-inspired “Hymn for the Weekend.”


“It’s not OK to steal culture. At some point we have to acknowledge the ways in which capitalism supports and sustains the mistreatment of people. If we are going to make any way toward racial conciliation, ethnic conciliation, we have to respect culture,” Mason-Campbell says. “If you are going to sell culture, it costs money. It’s intellectual property. We don’t call it ‘The Carlton dance’ for nothing.”

Unfortunately, it’s not unusual to love the culture and not the people.

Jeneé Osterheldt can be reached at jenee.osterheldt@globe.com and on Twitter @sincerelyjenee.