Epic Fail: How to force brands to compensate and credit Black creatives
In the wake of lawsuits against Epic Games and Take-Two Interactive, legal and influencer marketing experts share how to fight the culture vultures for your currency.
Non-Black folks can’t seem to resist hitting “control + c” on our culture.
They snatch our dance moves and always have, from the shotgun back in the ‘60s to the leg-pumping “shooter dance” and “#KikiChallenge” of the ‘00s.
Our vocabulary and phrases are also up for grabs. Dope, phat, lit, bruh and “on fleek” have worked their way into the lexicon of mainstream brands. There are even unseasoned hordes increasingly using the term “sis” on Twitter.
But in a world where influencers can become million-dollar moguls, Black tastemakers should no longer settle for viral bragging rights or a virtual pat on the head from a celebrity admirer. These creatives need their coins and their credit, neither of which seem to be forthcoming.
“We can name so many influencers and YouTube content creators, mainly White content creators, who can leverage their influences and creations for commercial distribution and gain,” says Jeff Lopez, owner of Gloob Marketing and newly launched influencer-and-brand matchmaking network, Gloob Motivo.
Lopez, a prodigy in the influencer realm who oversaw digital strategy for artist Chris Brown when he was only a teen, says he has watched the burgeoning influencer industry develop, and with it, a disquieting tendency to undervalue Black content creators despite the sheer amount and virility of their output.
“It is not fair at all,” Lopez contends. “They are not being compensated for what I call Black cultural currency.”
Welp, looks like winter may finally be coming for the culture vultures. The first ice storm comes in the form of recent litigation against the gaming juggernaut, Epic Games, Inc. In two lawsuits filed on Monday, plaintiff Alfonso Ribiero, actor and dancer extraordinaire, targeted Epic and Take-Two Interactive Software Inc. claiming that the companies “unfairly profited” from using his likeness with dance sequences in their wildly popular Fortnite and NBA 2K, respectively.
According to Alfonso Ribeiro (as well as anyone else with functioning eyeballs), the game recreates “The Carlton” dance, a swinging and swaying sequence that the “Fresh Prince” star immortalized on the show back in the ‘90s and rejuvenated during his winning run on season 19 of “Dancing with the Stars.”
Alfonso Ribeiro joins Brooklyn rapper, 2 Milly who filed suit in early December, after seeing his viral Milly Rock allegedly repurposed for what the game is calling the “Swipe It” move. Lastly, Backpack Kid, aka Russel Horning, reluctantly jumped into the fray on Tuesday, with his management (read: his mom) going after NBA 2K over the “flossing” he popularized online and through a show-stealing 2017 “SNL” appearance with musical guest Katy Perry. All three parties are represented by the same law firm, Pierce Bainbridge Beck Price & Hecht LLP, according to Variety.
Taking this fight into the legal arena is a good start, according to Gloob’s Lopez and other influencer marketing experts, who say the solution for these three plaintiffs, as well as other digital influencers across the country, lies somewhere between the courthouse and the copyright and trademark departments.
Copyright protects original works of authorship including in the areas of choreography, literary, musical, and artistic creations, such as poetry, films, movie scripts, computer codes, novels and songs. Trademark, on the other hand, is associated with items that identify a company brand, such as a name, logo or slogan.
The market is changing and brands need to know that simply because they see it online, does NOT mean it’s free for the taking and re-making.
“Big companies like this don’t expect to be sued because rarely are they ever sued,” explains intellectual property attorney Patrice Perkins, founding partner of Creative Genius Law, a firm headquartered in Chicago with offices in Los Angeles and the DMV area.
“This is risk analysis that I believe is going on during the development process. They are asking themselves, ‘What is the risk of us rolling this out here? What is our budget? Do we have a small amount we can pay them if they come forward?’ They know that if they attach any credit, that’s admitting they knew who the idea originally came from. You pay more in damages for willful infringement than innocent, or unknowing, infringement.”
Perkins acknowledges that it can be difficult to know exactly what to do to when it comes to protecting your creations because current law is murky and leaves it up to the courts’ discretion. For example, in the Fortnite and NBA 2K cases, there may be an obstacle for plaintiffs since current copyright law protects choreography, traditionally understood as more complex dance sequences. It’s less clear how to safeguard the simple swinging steps of “The Carlton” dance or the slow-mo dice throw of the “Milly Rock.”
She also contends it may be easier for Ribiero to prove his case with respect to his likeness being stolen unlike some of his fellow viral remedy-seekers because his fame level is more mainstream.
How to start protecting yourself
Regardless, what happens in all three cases will no doubt set precedent for future and similar scenarios, forcing the courts to catch up with the constantly shifting, and ever-important influencer marketing methodology. In the meantime, all of the experts interviewed urged all you dancers, artists, writers, singers, and other creatives to file for copyright of your ideas, and attempt to connect ongoing, promising catchphrases to specific products or services via trademarking.
For example, Perkins suggests, if Vine innovator Kayla Newman had started an “on fleek” line of mugs, T-shirts or associated it with a brow-shaping business, she would have had a stronger legal leg to stand on when brands, including Forever21 and IHOP began using the phrase in their advertising.
You don’t even have to reach “on fleek” ubiquity or “Kiki Challenge” cult following to seek protections.
“Think about what happens if someone grabs that video you made that originally, only 300 followers saw, but then it becomes big when they add it to another video or use it on their platform in some way,” hypothesizes Jerveris Floyd, Influencer Marketing Manager at Cashmere Agency.
“Now you’re talking business-to-business transaction, but this company has looked online and found something that for all intents and purposes, is for free. They have as much of an argument as you do if you don’t take yourself seriously and seek copyright or trademarks. If you do things for fun and don’t mind if people use it, and that’s your attitude, fine. But as soon as people wake up and realize every person is a walking brand and starts to take their own content seriously, that’s when you’ll start to see things change.”
Another way we can push change: If the Black community closes ranks around our creators and their creations. Nobody is expecting all Black folks to give up their favorite games until these legal matters are resolved, but we can continue to put consistent, unrelenting digital pressure on these brands, and so many others, that clearly rely on us, not just from our collective cool, but our consumption.
“Cases like this shed light on the fact that these companies think this is nothing more than just ‘a dance’ or ‘a phrase’ and it’s much deeper than that,” Gloob’s Lopez says.
“Black creators are underrepresented as it comes to making these deals and money for what they are doing. They are not being compensated at the level they deserve. It is time for them to receive the same respect as other content creators.”
You hear that Epic and Take-Two? This, unlike Fortnite and NBA 2K, is not a game.
Kyra Kyles is a nationally known multi-platform media executive, author, and speaker on media diversity. In addition to her 20-plus years as a journalist, including a tenure as Editor-in-Chief and Senior Vice President of Digital at EBONY and a multimedia correspondent/columnist for the Tribune Company, Kyra is the Chicago-based co-founder of content development collective, Myth Lab Entertainment and a contributor to outlets including TheGrio and Bustle. Follow and interact with her via @thekylesfiles on Instagram, Facebook, and Twitter.