Backpack Kid Sues Fortnite For Stealing 'The Floss' Dance

Feb 20, 2019
Originally published on February 20, 2019 5:29 pm
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MARY LOUISE KELLY, HOST:

And now to the story of an Instagram and YouTube celebrity who sparked a dance craze. He's learning firsthand how tough it can be to turn Internet fame into money. Stacey Vanek Smith and Shane McKeon from our Planet Money Indicator team say his dilemma can be described in a single sentence.

SHANE MCKEON, BYLINE: Backpack Kid is suing Fortnite for stealing The Floss.

STACEY VANEK SMITH, BYLINE: That does not make sense.

MCKEON: I think we should just take this one noun at a time. So let's start with Backpack Kid. He is this skinny teenager with long, bony arms...

VANEK SMITH: And a backpack.

MCKEON: ...And a backpack.

VANEK SMITH: OK.

MCKEON: And a few years ago, he's living in Georgia, posting videos of himself dancing on Instagram when, all of a sudden, one of these videos goes viral. And it's so popular that Katy Perry invites him on "SNL" to do the dance.

VANEK SMITH: Whoa. That sentence I understand.

MCKEON: Yeah.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: The kid took the stage as Katy Perry performed and, in about two seconds, took over the show.

VANEK SMITH: So this dance that he is doing - it's called flossing.

MCKEON: Yes.

VANEK SMITH: This is The Floss.

MCKEON: The Floss.

VANEK SMITH: OK.

MCKEON: And it's this dance where you sort of take your arms, and you swing them to and fro. And you're sort of flossing your hips.

VANEK SMITH: (Laughter).

MCKEON: Anyway, the thing you have to know about Backpack Kid...

VANEK SMITH: Yes.

MCKEON: ...Is is he made The Floss famous.

VANEK SMITH: And that brings us to the next part of the sentence.

MCKEON: Fortnite.

VANEK SMITH: Fortnite.

MCKEON: So Fortnite - it's like this online, multiplayer, battle royale game. You're on a team, and you're trying to shoot the other team. But one of the things you can do in Fortnite is you can do these dances like The Floss.

VANEK SMITH: Wow.

MCKEON: Fortnite is owned by this company called Epic Games. And one of the major ways Epic Games makes money off of Fortnite is by selling these dance upgrades. And so Backpack Kid - right? - he looks at Fortnite, and he sees this company making a ton of money...

VANEK SMITH: Yeah.

MCKEON: ...By selling the dance he made famous. And he's like, I want some of that action. And so Backpack Kid is suing Epic Games, and some lawyers have gotten involved.

DAVID HECHT: So if we were talking about music...

MCKEON: This is David Hecht. He's one of Backpack Kid's lawyers.

HECHT: If you had a song and they sampled from another song, we would say that that's copyright infringement.

MCKEON: And so Backpack Kid has filed for some copyrights, at least one of which has been granted. But that doesn't mean he owns that arm-swinging move that all the kids are doing.

JESSICA LITMAN: The copyright statute does protect what the statute calls choreographic works.

MCKEON: This is Jessica Litman. She teaches law at the University of Michigan.

LITMAN: But it doesn't protect building blocks like dance steps.

MCKEON: A choreographic work - a sequence of lots of moves performed over time, so, like, a 40-minute ballet. But a single dance move - that, Litman says, is a building block.

VANEK SMITH: And if you grant copyright protection for a single dance move, it could lead to some pretty weird scenarios.

LITMAN: Whenever anyone performed The Floss on the dance floor in a club, Backpack Kid could bring suit against the club. The club would have to say to people don't wave your arms.

VANEK SMITH: The courts are going to have to decide, what does Backpack Kid actually own? And what is Epic using? Is it a dance move or an entire dance? The answer to these questions will determine what Epic owes Backpack Kid, if Epic owes Backpack Kid anything. Epic Games declined to comment.

MCKEON: In the meantime, Backpack Kid has taken up another pastime of...

VANEK SMITH: OK.

MCKEON: ...Young, white teenagers who've gotten famous on the Internet. He's trying to leverage his celebrity into a rap career.

(SOUNDBITE OF SONG, "FLOSSIN")

BACKPACK KID: (Rapping) I be flossing. Transcript provided by NPR, Copyright NPR.