Who Owns a Meme?

A legal battle over Fortnite raises many questions without clear answers

Photo by Greg Doherty/Getty

There is no legal precedent for Backpack Kid, aka Russell Horning, the teenager who turned heads as the backup dancer du jour in a Katy Perry Saturday Night Live performance back in 2017. His mesmeric rhythm and aloof expression immediately went viral, and today we call his dance “the floss.”

The floss is everywhere. Ted Danson did it. Mark Ingram did it. A 96-year old World War II veteran did it. And it’s in Fortnite, where a wide range of emotes, or character actions, are sold by developer Epic Games. Fortnite characters can also dance using the “fresh” emote, which directly cribs from the “Carlton dance” Alfonso Ribeiro made famous on the Fresh Prince of Bel-Air, or “swipe it,” a copy of 2 Milly’s Milly Rock dance.

None of the creators of these dances see a cent from the game’s in-app purchases, which, in aggregate, reportedly led Epic to $1 billion in revenue midway through last year. So, naturally, the creators sued. And quickly hit a brick wall.

Three months after filing those suits, Horning, 2 Milly, and Ribiero each temporarily dropped their cases this week after the Supreme Court ruled that plaintiffs can’t sue for copyright infringement until they have officially applied, and received, a copyright license on their dances from the U.S. Copyright Office.

“With the advent of technology, and the advent of social media, [cases like this] are going to become more common.”

That may be trickier than it sounds. Copyright law was conceived “to promote the progress of science and useful arts.” The idea that, someday, a company could sell short dance movements — memes, essentially — adopted from short-form digital video would have been difficult to imagine when modern copyright laws were written more than 40 years ago.

“I’m pretty sure that the legislators didn’t think, ‘Oh, years from now there will be this thing called the internet, where someone can create a meme that produces copyrighted material in this matter,” says Merlyne Jean-Louis, a business and entertainment lawyer based in New York. “The law is reactionary. With the advent of technology…