{"id":62390,"date":"2019-03-26T03:05:34","date_gmt":"2019-03-26T10:05:34","guid":{"rendered":"http:\/\/www.taterboy.com\/blog\/2019\/03\/fortnite-copyright-and-the-legal-precedent-that-could-still-mean-trouble-for-epic-games\/"},"modified":"2019-03-26T03:05:34","modified_gmt":"2019-03-26T10:05:34","slug":"fortnite-copyright-and-the-legal-precedent-that-could-still-mean-trouble-for-epic-games","status":"publish","type":"post","link":"https:\/\/www.taterboy.com\/blog\/2019\/03\/fortnite-copyright-and-the-legal-precedent-that-could-still-mean-trouble-for-epic-games\/","title":{"rendered":"Fortnite, copyright and the legal precedent that could still mean trouble for Epic Games"},"content":{"rendered":"
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\n\t\t\t\t\t\t\tAnne Friedman<\/span>
\n\t\t\t\t\t\tContributor<\/span>\n\t\t<\/div>\n
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\n\t\t\t\t\tShare on Twitter<\/title><\/path><\/svg><\/a>\n\t\t<\/div>\n<\/p><\/div>\n
\n\t\tAnne Friedman<\/a> is of counsel at DLA Piper where she focuses her practice on structuring and negotiating large scale sourcing and technology transactions.\t<\/div>\n<\/p><\/div>\n
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\n\t\t\t\t\t\t\tAndrew Deutsch<\/span>
\n\t\t\t\t\t\tContributor<\/span>\n\t\t<\/div>\n<\/p><\/div>\n
\n\t\tAndrew Deutsch<\/a> is a partner at DLA Piper concentrating on intellectual property litigation and advice, including copyright, trademark, defamation and other First Amendment concerns, trade secret, unfair competition and misappropriation, advertising law, and law of the Internet, social media and electronic databases.\t<\/div>\n<\/p><\/div>\n
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\n\t\t\t\t\t\t\tRic Flaggert<\/span>
\n\t\t\t\t\t\tContributor<\/span>\n\t\t<\/div>\n
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\n\t\t\t\t\tShare on Twitter<\/title><\/path><\/svg><\/a>\n\t\t<\/div>\n<\/p><\/div>\n
\n\t\tRic Flaggert<\/a> is a partner at DLA Piper where he focuses his global practice on entertainment, media, and communications matters.\t<\/div>\n<\/p><\/div>\n

A new U.S. Supreme Court decision is pitting entertainers and video game developers against one another in a high-stakes battle royale.<\/p>\n

The decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC raises interesting questions about several lawsuits brought against Epic Games, the publisher of popular multiplayer game Fortnite.<\/p>\n

In Fortnite, players may make in-game purchases, allowing player avatars to perform popular dance moves (called emotes), such as the Carlton, the Floss, and the Milly Rock.<\/p>\n

Five performers, all represented by the same law firm, recently filed separate lawsuits against Epic Games in the Central District of California, each alleging: (i) the performer created a dance; (ii) the dance is uniquely identified with the performer; (iii) an Epic emote is a copy of the dance; and (iv) Epic\u2019s use of the dance infringes the plaintiff\u2019s copyright in the dance move and the dancer\u2019s right to publicity under California statutory and common law.<\/p>\n

In short, the dance creators argue that Epic Games used their copyrightable dance moves in violation of existing law.<\/p>\n

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The building battle<\/h3>\n

What do these Fortnite lawsuits in California have to do with the US Supreme Court? \u00a0US copyright law says that a copyright owner can\u2019t sue for copyright infringement until \u201cregistration of the copyright claim has been made\u201d with the US Copyright Office. \u00a0Prior to the recent Supreme Court decision in Fourth Estate, lower federal courts split over what this language means.<\/p>\n

Some (including the federal courts in California) concluded that a copyright claimant could sue an alleged infringer upon delivering a completed copyright application to the Copyright Office. \u00a0Other lower federal courts held that the suit could not be brought until the Copyright Office issued a registration, meaning that the Office viewed the work to be copyrightable.<\/p>\n

Because the Copyright Office now takes over seven months to process a copyright application and issue a registration, claimants often chose to sue in California federal courts, which had adopted the quicker \u201capplication approach.\u201d \u00a0This was the route chosen by the plaintiffs in all five Fortnite cases.<\/p>\n

Down (but not out)<\/h3>\n

On March 4, 2019, in Fourth Estate, the Supreme Court ruled that California federal courts and others following the application approach were wrong, and that a plaintiff cannot sue for copyright infringement unless the Copyright Office has issued a copyright registration.<\/p>\n

This had an immediate impact on the Fortnite lawsuits because the Copyright Office had not yet registered any of the dances and, indeed, had found two of the plaintiffs\u2019 dances uncopyrightable. \u00a0Recognizing their vulnerability, plaintiffs preemptively withdrew these lawsuits, announcing they would refile the complaints once the Copyright Office issued registrations.<\/p>\n

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Epic question #1: are the emote dances copyrightable?<\/h3>\n

The central question is whether the dances used in Fortnite emotes are copyrightable material \u00a0protected under US law. If not, then Epic Games\u2019 use of the dances is not copyright infringement, and in-game sales of the particular dances may continue unfettered.<\/p>\n

Dance moves fall into a gray area in copyright law. \u00a0Copyright law does protect \u201cchoreographic works,\u201d but the Copyright Office says that \u201csocial dance steps and simple routines\u201d are not protected. What\u2019s the difference between the two? The Copyright Office says that choreography commonly involves \u201cthe composition and arrangement of a related series of dance movements and patterns organized into a coherent whole\u201d and \u201ca story, theme, or abstract composition conveyed through movement.\u201d \u00a0Dances that don\u2019t meet this standard can\u2019t be copyrighted, even if they are \u201cnovel and distinctive.\u201d<\/p>\n

So are the Fortnite plaintiffs\u2019 dances \u201cchoreographic works\u201d in the eyes of the Copyright Office? \u00a0Herein lies a clash of cultures. The performer-plaintiffs undoubtedly feel they have created something not just unique, but a work entitled to protection for which they are owed damages. \u00a0But the buttoned-down Copyright Office may not agree.<\/p>\n

The Copyright Office has already denied Alfonso Ribeiro a copyright registration<\/span><\/a> for the Carlton, a widely recognized dance popularized by Ribeiro during his days as Carlton Banks on the show Fresh Prince of Bel Air. \u00a0The Office stated that the Carlton was \u201ca simple routine made up of three dance steps\u201d and \u201cis not registrable as a choreographic work.\u201d <\/span><\/p>\n

The plaintiffs\u2019 lawyer in the Epic Games cases has disclosed that 2 Milly\u2019s application for copyright in the Milly Rock was also rejected, but that a long \u201cvariant\u201d of Backpack Kid\u2019s Floss dance was accepted for registration. \u00a0The Copyright Office\u2019s view on the other two plaintiffs\u2019 dances has not yet been reported.<\/p>\n

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If a registration is denied<\/h3>\n

Denial of a copyright registration is not necessarily a dead end for these lawsuits. \u00a0The Copyright Act allows a plaintiff who has been refused a copyright registration by the Copyright Office to still sue a potentially offending party for copyright infringement. \u00a0However, the Copyright Office can then join the lawsuit by asserting that the plaintiff\u2019s work is not entitled to copyright protection.<\/p>\n

Historically, the federal courts have usually followed the Copyright Office\u2019s view that a work is uncopyrightable. \u00a0If the other Fortnite plaintiffs are denied registration, as Ribeiro and 2 Milly were, they will all face an uphill fight on their copyright claims.<\/p>\n

Other issues to overcome<\/h3>\n

Even if the plaintiffs\u2019 copyright claims survive, they face other problems, including originality, which is a requirement of copyright. \u00a0If their dances are composed of moves contained in dances previously created by others, the plaintiffs may fail to convince the court that their dances are sufficiently original to warrant their own copyright. \u00a0For example, Ribeiro has stated in interviews<\/a> that moves by Eddie Murphy, Courtney Cox and Bruce Springsteen inspired him when he created the Carlton.<\/p>\n

Ownership of the dance can also be at issue if the dance was created in the course of employment (such as while working as an actor on a television show), as the law may hold that the employer owns the copyright.<\/p>\n<\/p>\n

<\/h3>\n

Epic question #2: the right to publicity<\/h3>\n

The plaintiffs\u2019 right to publicity arguments could go further than their copyright infringement claims. The right to publicity claims were based on the assertion that plaintiffs\u2019 dances are uniquely associated with them and that Epic Games digitally copied the plaintiffs performing the dances, then created a code that allows avatars to identically perform the dances. \u00a0Some side-by-side comparisons of the original dance performances and the Epic emote versions (speed adjusted) look strikingly similar for the few seconds the emote lasts. According to plaintiffs, this use misappropriated their \u201cidentity.\u201d<\/p>\n

Their assertion is not as far-fetched as it may seem, given the broad reading courts in California have given to the state\u2019s common law and statutory publicity law. \u00a0For example, the Ninth Circuit has previously ruled that an ad featuring a robot with a wig that turned letters on a board wrongfully took Vanna White\u2019s identity, and that animatronic robots sitting at airport bars vaguely resembling \u201cNorm\u201d and \u201cCliff,\u201d characters from the popular TV show Cheers, misappropriated the identities of the actors who played the roles, George Wendt and John Ratzenberger.<\/p>\n

There remains an open question on whether the courts will be willing to take another step and find that a game avatar having no physical resemblance to a performer misappropriates the performer\u2019s publicity rights just because the avatar does a dance popularly associated with the performer.<\/p>\n

Once the Copyright Office announces its decisions on the outstanding copyright applications, the Fortnite plaintiffs may choose to re-file their cases; and this question could eventually be decided.<\/p>\n

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Anne Friedman Contributor Share on Twitter Anne Friedman is of counsel at DLA Piper where she focuses her practice on structuring and negotiating large scale sourcing and technology transactions. Andrew Deutsch Contributor Andrew Deutsch is a partner at DLA Piper concentrating on intellectual property litigation and advice, including copyright, trademark, defamation and other First Amendment… Read the full article…<\/a><\/p>\n","protected":false},"author":4,"featured_media":62391,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[174,377],"tags":[],"class_list":["post-62390","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-games-media","category-gaming"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t