Originally published for Broadly as part of my “Extremely Online” monthly column on February 4th, 2019.
In Extremely Online, Shamira Ibrahim investigates the origins and impact of internet phenomena, viral trends, and other online mysteries that shape our daily digital experiences. This piece is also part of In Browsing Black History, in which we celebrate Black History Month by exploring the origins of internet trends and icons popularized by Black cultural producers, too often left uncredited for their work.
When South Korean boy band BTS made their highly-anticipated first appearance on the The Tonight Show Starring Jimmy Fallon this past September, they performed their smash hit song “Idol,” replete with the well-known dance move associated with it—the base of which is an extension of the South African gwara gwara dance with an additional four-count pulse for flair, and got relabeled into its own Idol Challenge. It wasn’t the only dancing they did during their time on Fallon’s stage: In a pre-recorded segment, they also engaged in the Fortnite dance challenge.
The Tonight Show is far from the only program to do one of these viral segments: Sites such as BuzzFeed and shows such as Access Hollywoodhave all participated in the wildly popular challenge, borne out of the “emotes” embedded in the multiplayer online video game, largely obtained via in-game purchases. Classic dances such as the Robot, the Worm, and the Charleston (called “the Flapper” in the game) are also optional add-ons—but so are newer dances attached to Black artists of present-day, such as 2 Milly’s Milly Rock and Blocboy JB’s “Shoot” dance. But 2 Milly and Blocboy aren’t mentioned in these emotes whatsoever. Nor are their predefined choreography names.
Instead, they have been rendered into a milquetoast version, absent the verve and the accreditation to the Black cultural production it was derived from: The Milly Rock is now (ironically) “Swipe It,” and Shoot is now “Hype.”
The mimicry doesn’t stop there. There is Tidy, which is a frame-for-frame sync with Snoop Dogg’s steering-wheel move in the “Drop it Like it’s Hot” music video. In a comical bit of allusion, the “Fresh” dance is a rendition of Alfonso Ribeiro’s infamous “Carlton dance” performed on The Fresh Prince of Bel-Air twenty years before. And the costs of these dances range from anywhere from 500 V-Bucks (the equivalent of $5 USD) to a $9.50 pass upgrade—with 125 million users on the platform, the revenue from these sales is estimated to be $2 billion, according to a report from Techcrunch.
Unfortunately, none of the Black artists who were the inspiration for many of the popular dance emotes saw any of it.
The misappropriation and profiteering of Black content is not without precedent: In an essay titled Intellectual Property at the Intersection of Race and Gender, law professor K.J. Greene wrote “the history of Black artists within U.S. IP law has been one of appropriation, degradation, and devaluation beginning with the creation of the nation until the 1950s and 60s.” Greene contends that Black artists have consistently been penalized for innovating in the public sphere—which includes the music genres of country, jazz, blues, rock-and-roll, and hip-hop—limiting the bounds of what previously applied under copyright protection and ultimately rendering Black creativity as public domain.
Nowadays, the copyright laws may technically protect more content—it is attached upon the completion of the artifact (not upon registration as commonly assumed), be it a song, a written piece, or other “tangible works,” but that is only half of the fight.
“The issue isn’t necessarily in you creating and owning it. It [just] costs money to enforce,” Bärí A. Williams, a technology lawyer and VP of Legal, Business, and Policy Affairs at All Turtles, a product design and development incubator, tells Broadly. “A rule is only as good as how it is enforced.”
“IP issues are extremely expensive to litigate and to handle,” Williams clarifies. “Nine times out of ten, people are not going to try to enforce that right because it just costs too much—and the people who can’t afford it are the people in marginalized communities who are making all the great content, that are making things go viral, that are making things hot. And that’s the problem. The game is not set up for us to win.”
Presently, 2 Milly, Blocboy, and Ribeiro have all retained the legal counsel of the firm Pierce Bainbridge Beck Price & Hecht, LLP. According to David Hecht, partner at Pierce Bainbridge and lead attorney for both Ribeiro and 2 Milly, the firm is hoping that this suit will not only force Epic Games to be held accountable for its alleged copyright infringement, but will also set a potential opportunity for a right of publicity law, which governs the commercial use of one’s likeness or other aspects tied to their persona, to be set on the national scale instead of on a state-by-state basis.
While there has been much debate over whether or not choreography is eligible for protection, Hecht points out that it, in fact, is under United States Copyright Law, as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole;” with the added note that video recordings can be used to verify the “tangible medium,” such as music videos.
“Epic has no problem with paying Marvel or the NFL [for their IP], and these are billion-dollar companies,” Hecht points out to Broadly. “These individual artists got ignored because they thought ‘what are the chances to litigate’?,” he believes.
A representative from Epic Games told Broadly that they do not comment on ongoing litigation.
There does seem to be precedent here: Dancer Gabby J David uploaded her own choreography to a remix to Bad and Boujee in 2017, only for it to be turned into the Electro Shuffle emote. In a tweet from David’s account, she indicated that Epic Games had opted for a settlement, writing, “they stole it from me and are now settling with me aka they 1000% stole my stuff.” The amount of her reported settlement has not been made public.
The phenomenon in video games doesn’t stop at helm of Epic Games: Take-Two Interactive and their video game subsidiary, 2K Games, Inc. is also under fire for using multiple proprietary Black dances into the popular NBA 2K18 game without accrediting or compensating the inventors. In both cases, Hecht describes it as an “exploitation and cultural misappropriation of African-American talent,” citing that the measures that these companies are taking amount to not only intentional theft as the artists were never so much as approached, it also cheapens the dance when it is introduced to the masses of approximately 125 million people devoid of its original context.
The fight for proprietary rights to Black cultural production is not a novel discussion. However, at the confluence of technology, capitalism, and regulation, young creatives find themselves at the mercy of lawmakers’ ability to keep pace with the vanguard of technological trends. While there may yet to be a consensus on the clearest path forward, it behooves the creators of culture to continue to hold accountable the distillations of their own artistic output.
In a 2015 article for the Fader, Doreen St. Felix wrote, “When we talk about technology, the designation of ‘digital innovator’ is usually reserved for the engineers who create platforms or the entrepreneurs who instruct them to… A cursory glance at the user-generated content rising to the top of the internet heap reveals how much of it is produced by Black teens, members of a burgeoning Generation Z who experiment with the iPhone gaze.”
At the time, the discussion of the moment was around Peaches Monroee, aka Kayla Newman, who became infamous for bringing the phrase “on fleek” into the digital zeitgeist without any control of its canonization afterward. She is far from the only one: BET’s digital series “I Went Viral” is a live accounting of some of the biggest stories of our digital innovators and improvisers, some who have had varying measures of success with accreditation and compensation, all generally at the whims of the profiteer.
The lesson in these stories and so many others throughout America’s history is evident: Going viral may seem to be something that is purely a result of serendipity, but the fact is having an aptitude for making art that captures the cutting-edge of creativity in expression and improvisation has been a longstanding pattern for Black people in America.
Isn’t it time to give credit—socially, financially, or otherwise—where it’s due?