Flossin', the Backpack Kid, Fortnite, Lawsuits, and Copyright Law
by Susan Basko, esq.
The Backpack Kid, Russell Horning, is suing owners of two video games -- Fortnite and NBA 2K -- for using his Floss dance without his permission and without paying him.
However, to sue someone, there must be a legally-acceptable basis for the lawsuit. In this instance, there are two possible legal theories for a lawsuit, but neither one meets the legal requirements.
The first possible legal basis for a lawsuit would be Copyright on the Choreography. However, Copyright law only protects Choreography that is meant to be performed by skilled, professional dancers, and where the choreographer has preserved the dance with notations or video to be used by professional dancers to create their performance. Copyright law, at this time, does not protect a simple dance movement that is a fad to be performed by anyone.
This is a cool video of the Backpack Kid judging different people trying to Floss. As you can see, the dance is one simple move. However, not everyone can get the hang of it.
Below, you can read the circular put out by the U.S. Copyright Office about Copyright of Choreography. The Copyright Office only recognizes choreography that is notated or set in tangible form, meant to be performed by skilled, professional dancers. It does not recognize short routines meant to be performed by everyday people. Unless the U.S. Copyright Office decides to start recognizing common fad dances as having copyright, the copyright portion of this lawsuit cannot succeed. Flossing is similar to the olden days fad of doing the twist -- it is a simple movement meant for everyone to do it.
Another potential basis for a lawsuit by the Backpack Kid against the video games would be the California Right of Publicity, which protects commercial use of a person's name, voice, signature, photograph, and likeness. However -- the video games are not using any of these things. Rather, the games are having animated characters doing the Floss dance.
These lawsuits are likely to be an extremely expensive mistake for the Backpack Kid. Lawsuits are very expensive and can destroy him financially. That is a shame, because basic legal research would have shown that neither of these causes of action can succeed.
The Backpack Kid still has lots of ways he can make money by capitalizing on his newfound fame -- including personal appearances, television appearances, and by developing some trademarks based on his nickname and dance, and by creating a line of merchandise, such as shirts, posters, greeting cards, action figures, games, etc. We wish him the best in such creative ventures! Wasting his time and money on a most likely to fail lawsuit is a shame and can destroy him not only financially, but popularity-wise, too, since people will become afraid to deal with him and his dance routine, for fear of becoming a target of a frivolous lawsuit.
Choreography Copyright Guid... by on Scribd