United States: Fortnite's Pop Culture References Risk IP Infringement

Fortnite has been a massive success for publisher Epic Games. Released in 2017, the title raked in $2.4 billion in digital revenue last year and has proven popular both with traditional gamers and with others who do not regularly play video games.

A critical component of Fortnite’s growth and continued cultural relevance has been the integration of pop culture references directly into gameplay. When the hotly anticipated Marvel film Avengers: Infinity War hit theaters in April 2018, Epic Games launched a limited-time game mode featuring Marvel supervillain Thanos. But Epic Games has also landed in federal court over copyright infringement complaints surrounding in-game dance moves known as “emotes.”

One attractive feature of Fortnite is the ability to customize nearly every aspect of an avatar’s appearance. A player may purchase characters with different outfits, or “skins,” as well as a variety of accessories, such as pets, tools, and gliders to play with. Epic Games also sells players different emotes that characters can perform in-game. Some of those dances mimic dances associated with real-world celebrities or shows. Players have been able to perform dances attributed to celebrities such as Snoop Dogg, or TV shows such as Scrubs and Seinfeld.

Epic Games has side-stepped the IP issue for some of the customizable features that it sells. In November 2018, the company licensed NFL football jerseys to add to the list of “skins” available in Fortnite. It has also incorporated themes or generic content that would likely avoid legal trouble, including seasonal themes such as Halloween.

In December 2018, rapper 2 Milly filed a lawsuit claiming that Fortnite infringed the copyright to his “Milly Rock” dance. Specifically, his claims are based on an emote available for purchase called “Swipe It.” Russell Horning, the “Backpack Kid” who invented the “Floss” dance, and Alfonso Ribeiro, who played Carlton Banks on The Fresh Prince of Bel-Air, followed that lead and also filed lawsuits against Fortnite for selling their dances as emotes. Rachel McCumbers, the mother of “Orange Shirt Kid,” filed a lawsuit on behalf of her son, who had popularized a dance that allegedly became an emote known as “Orange Justice.” Following the filing of those suits, Turn 10 Studios, creator of the Forza series of racing games, removed two controversial emotes from its game seemingly as a preventative measure against facing similar litigation.

In January, the Copyright Office denied Ribeiro’s application to register a copyright for his dance, calling it a simple dance routine and not registerable as a choreographic work. In March, Ribeiro’s complaint was voluntarily dismissed without prejudice. However, Ribeiro may still choose to pursue his claim alleging Epic Games violated his right of publicity under California law.

Under the Copyright Act of 1976, an original work of authorship that falls into a protectable category and is fixed in a tangible medium of expression is subject to copyright protection upon creation. Copyright holders have the exclusive right to reproduce the work, distribute copies, perform or display the work publicly, and prepare derivative works. Authors are not obligated to officially register their works for copyright protection, but doing so brings certain benefits, including, for U.S. authors, the ability to bring a suit for infringement.

To prove copyright infringement, a rights-owner must show that they own a valid copyright and that the alleged infringer copied original elements of that work. A key question in the Fortnite cases is whether the plaintiffs’ dances are subject to copyright protection, and whether they will be issued copyright registration by the Copyright Office.

Fortnite emotes are short dances, usually composed of a few movements performed in under 30 seconds, with some as short as five seconds. While there is no dispute that choreography is subject to copyright protection, a current question is whether the short dances at issue will be considered sufficiently original to qualify as choreography.

The Copyright Office defines protectable choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” Excluded from this definition are commonplace movements or gestures, which include “short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if the routine is novel or distinctive.” Quintessential examples of commonplace movements are the basic waltz step, the grapevine, a yoga pose, and end zone dances.

The Copyright Office will also not issue registrations for social dances, which it defines as “dance steps and simple routines … intended to be performed by members of the public for the enjoyment of the dancers themselves.” Social dances are not subject to copyright protection even if they are considered to be creative. Examples of social dances include ballroom dances, line dances, and swing dances.

If a court finds that the dances are not protectable, then Epic Games would be free to use the dances as it pleases, in the absence of other legal issues. If a court finds that the dances are protectable, then, absent another viable defense such as lack of ownership by the plaintiff, lack of substantial similarity, fair use, or de minimus use, Epic Games may be liable for damages to the plaintiffs. And the developer could face more lawsuits from other copyright holders waiting to see how these initial cases turn out.

If the dance claims detailed above are successful, though, they could also favor Fortnite. During the Russia 2018 FIFA World Cup, some soccer players celebrated on the field with Fortnite dances. Fans suggested that EA, the company that publishes the FIFA series videogames, could incorporate Fortnite dances into its own series. While EA has not indicated that it would do so, Epic Games should take note.

If 2 Milly and the others fail to secure protection for their respective dances, Epic Games would likely be unable to do the same for its emotes. EA and other game developers could then be free to incorporate Fortnite emotes into their own games.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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