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That which hath been is that which shall be, And that which hath been done is that which shall be done; And there is nothing new under the sun.1
Introduction
In late 2018, a lawsuit was filed against Epic Games, creator of the smash-hit video game Fortnite Battle Royale2 The plaintiff was Alfonso Ribeiro, known for playing Carlton Banks in the hit 1990s sitcom, The Fresh Prince of Bel-Air.3 Ribeiro asserted copyright claims against Epic for using digital representations of his "signature" dance, the "Carlton Dance,"4 as a player character "emote" in its game.5 Ribeiro alleged that "Epic creates emotes by copying and coding dances and movements directly from popular videos, movies, and television shows without consent."6 His complaint also commented on the general popularity of the dance: "The Dance ha[d] garnered over sixty-nine million views on YouTube" prior to the release of Fortnite;1 and since its release, "[professional athletes . . . have based their celebrations on Fortnite emotes" and "[y]oung adults, teenagers, and kids also post videos of themselves on YouTube and social media performing emotes under various hashtags, including #fortnitedance or #fortnitevideos."8 Epic Games sells the accused emote, entitled "Fresh," as downloadable content (DLC) for 800 V-Bucks (Fortuite"s virtual currency), which equates to about $8.00 USD.9 Though Fortuite is free to play, it has generated billions of dollars through the sale of DLC such as the dance emote.10 However, the Copyright Office disagreed with Ribeiro's position: it concluded that the Carlton Dance was too simple to be protected as choreography and refused to register a copyright for the work.11 Should Ribeiro be allowed to exercise private rights over a meme? Should Epic Games be allowed to reap the pecuniary rewards?
Contrast the Fortuite litigation with the case of Matt Furie and Pepe the Frog. Furie created the Pepe character in 2005 as a "peaceful frog-dude" who was always "blissfully stoned," and Pepe became an immensely popular internet meme.12 In recent years, however, Pepe was co-opted by alt-right groups and began to appear in highly offensive memes, often with swastikas and other anti-Semitic and white-supremacist imagery.13 Pepe soon became an alt-right "mascot."14 In one case, Pepe appeared in an Islamophobic children's book written by a North Texas public-school administrator.15 Furie threatened copyright litigation.16...