Terrence Ferguson v. Epic Games, Inc.

 Ferguson, aka 2 Milly, created the “Milly Rock” dance which was popularized by his music video.
 The Milly Rock has become synonymous with Ferguson, who is unanimously credited with
creating the dance that bears his stage name, and who performs the Milly Rock song and dance
at every performance
 Epic sells an “identical” dance as an emote in Fortnite under the name “Swipe It”. The reaction
from many players worldwide was immediate recognition of the emote as embodying the “Milly
Rock” while others likely believed it was Epic’s original creation.
 Epic did not credit Ferguson nor seek his consent to use, display, reproduce, sell, or create a
derivative work based upon Ferguson’s Milly Rock dance or likeness.
 Other artists have sought and been granted licenses from Ferguson in exchange for
compensation to perform the Milly Rock in their concerts and performances.
 Ferguson seeks injunctive relief and damages, including, but not limited to, Epic’s profits
attributed to its improper use of the Milly Rock and Ferguson’s likeness

Rachel McCumbers, on behalf of her minor son, C.C.M., also known as Orange Shirt Kid v. Epic Games,
Inc.

 Orange Shirt Kid is a child performer who created the Random dance in 2018, which exploded in
popularity following the release of his video performing the Random, along with the
accompanying catchphrase “It’s also a great exercise move!”
 Epic Games sells a “substantially similar” Random as an in-game purchase in Fortnite as an
emote under the name “Orange Justice” which is an obvious reference to “Orange Shirt Kid”.
The caption text that accompanies the Orange Justice that is the same as the Orange Shirt Kid’s
Catchphrase.
 Defendants did not credit Orange Shirt Kid nor seek his consent to use, display, reproduce, sell,
or create a derivative work based upon Orange Shirt Kid’s Random dance or likeness in Fortnite.
Defendants also did not seek his consent to use the Catchphrase in Fortnite.
 There’s no mention of the BoogieDown contest, nor of the tweets — now deleted — from
Orange Shirt Kid in which he submits his dance moves or celebrates Epic’s post-contest decision
to add him to the game.

Anita Redd, on behalf of her minor son, Russell Horning, also known as Backpack Kid v. Epic Games, Inc

 Through its unauthorized misappropriation of Backpack Kid’s highly popular signature dance,
the “Floss,” in its smash-hit, violent video game, Fortnite Battle Royale (“Fortnite”), Epic has
unfairly profited from exploiting Backpack Kid’s protected creative expression, likeness, and
Plaintiffs’ trademark without consent or authorization.
 Backpack Kid began gaining popularity in 2016 for posting videos of himself dancing on
Instagram. Most of Backpack Kid’s videos included Backpack Kid performing the dance.
 Backpack Kid has used and continues to successfully use the Floss commercially.
 Accordingly, the Floss is a part of Backpack Kid’s celebrity identity and the dance’s unique
movements readily evoke a connection to Backpack Kid. Plaintiffs also have copyrights in the
Floss dance and trademark rights in the “Floss” and “Backpack Kid.”
 Fortnite sold the Floss emote separately for 500 V-Bucks.
Alfonso Ribeiro v. Epic Games, Inc.

Facts:

 As a free-to-play video game, Epic allows players to download and play Fortnite for free.
 Emotes are incredibly popular and are fundamental to Fortnite’s success. Players purchase
emotes, alongside clothing and skins, to personalize their Fortnite experience.
 Epic creates emotes by copying and coding dances and movements directly from popular videos,
movies, and television shows without consent.
 In 1991, Ribeiro created The Dance and first performed it on The Fresh Prince of Bel-Air.
 Epic developed the Fresh emote to intentionally mimic Ribeiro performing The Dance. On
January 2, 2018, Fortnite released the Fresh emote into its Item Shop for 800 V-Bucks ($7.99).
 Epic did not seek, much less obtain, Ribeiro’s consent to use, display, reproduce, sell, or creative
a derivate work based upon The Dance or Ribiero’s likeness.

Legal Analysis

 Choreographic works were added to statutory catalogue of copyrightable works by 1976 Act.
 The work must be fixed in a tangible medium. Normally, fixation occurs by making a videotape
or movie out of the performance (i.e. Milly Rock music video, Fresh Prince of Bel Air). See
Martha Graham School and Dance Foundation Inc. v. Martha Graham Contemporary Dance, 380
F.3d 624, 632 (2d Cir. 2004).
 The work must be original. Choreography may consist of original routines or original
arrangements of preexisting routines. Social steps are not protectable. See Horgan v. MacMillan
Inc., 789 F.2d 157, 161 (2d Cir. 1986).