Embracing New Technology vs Litigation: If you can’t beat them, join them

Friday, April 19, 2019

Multiple entertainers have sued Epic Games Inc. for copyright infringement, and other claims, due to “emotes” or animated dance moves in its Fortnite video game. It is understandable that these entertainers would try to protect any rights in these dances. However, Fortnite has a large audience, and has been used to successfully generate publicity for other entertainers. For example, Epic recently hosted a mixed reality (MR) concert on Fortnite for a DJ named Marshmello, which boosted his hit song to a new peak on the Billboard Top 100 chart. Accordingly, instead of suing Epic, maybe these entertainers should consider utilizing the gaming medium to their benefit through publicity.  Afterall, if you can’t beat them, join them!

Epic Games makes a variety of video games, including Fortnite, which combines a shooter game (e.g., Call of Duty) and a building game (e.g., Minecraft). Fortnite is currently one of the most popular video games on the market. Although Fortnite is a “free” game, it offers many in-game purchases. Gamers can buy various features for a few V-Bucks (Fortnite currency). Gamers earn V-Bucks by playing the game, or by purchasing them with real money. These features include outfits or “skins,” weapons, accessories, or animated dance moves called “emotes.” Analysts estimate that Epic is currently making over $100 million a month on the Fortnite game alone[i].

Not surprisingly, since Epic is making real money from Fortnite, it has attracted litigation. Entertainers are pursuing litigation against Epic for copyright infringement, and other claims such as right of publicity, because some of these emotes appear to intentionally copy or reference dance moves these entertainers created or popularized. For example, Alfonso Ribeiro, who played Carlton Banks on the 1990s TV show the “Fresh Prince of Bell-Air” sued Epic asserting, among other claims, that the “the Fresh” Fortnite emote infringes his “Carlton” dance move from the TV show[ii]. (Ribiero v. Epic Games, Inc., case number 2:18-cv-10412, US Dist. Ct., CDCA.) Other entertainers, including rappers Terrence “2 Milly” Ferguson and James “BlocBoyJB” Baker, and Anita Redd, on behalf of Russell “Backpack Kid” Horning, have also sued Epic on similar claims[iii]. (See Ferguson v. Epic Games Inc., et al., case no. 2:18-cv-10110, US Dist. Ct., CDCA; Baker et al. v. Epic Games Inc., et al., case no. 2:19-cv-00505, US Dist. Ct., CDCA; Redd et al. v Epic Games Inc., et al., case no. 2:18-cv-10444, US Dist. Ct., CDCA).

It is unclear if any of these copyright claims will succeed because the US Copyright Office has repeatedly refused to register the copyrights, stating that simple or routine dance movements made up of social dance steps do not constitute a work of choreography[iv]. (See Ferguson v. Epic Games Inc. et al.: case no. 2:18-cv-10110 in the US Dist. Ct., for CDCA.) The U.S. Supreme Court recently ruled that a copyright owner must first obtain a copyright registration from the Copyright Office prior to filing a complaint for infringement of that work[v].  Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC et al., case number 17-571, 586 U. S. ____ (2019). Accordingly, many of these plaintiffs have withdrawn their claims, to refile in accordance with Fourth Estate. Rather than re-filing their claims against Epic, maybe these artists should consider the benefits of the free publicity.

Fortnite has a large audience and has been used to successfully generate publicity for other entertainers. On February 2, 2019, Epic hosted a Mixed Reality (MR) concert by the DJ, “Marshmello” on Fortnite, and over 10 million gamers attended it live. The video game image was virtual, but the audio was real. If an attendee didn’t like their point of view during the concert, they could move, even on stage to get a better view. The gamers could dance by selecting one or more emotes, including the allegedly infringing emotes. While the revenue structure for this type of event is unclear, the concert event appears to have been successful for both parties. As shown in the video, Fortnite sold plenty of Marshmello “skins” and Marshmello gained new fans. After the concert, Marshmello’s song Happier rebounded to a new peak of number 2 on Billboard’s top 100 after over 23 weeks on the chart[vii].

Other artists have decided to embrace new technology, rather than litigate. Federal law imposes civil penalties for unauthorized recording, transmission and distribution of live performances under 17 U.S.C § 1101, but as any concert-goer knows it is common for fans to pull out their cell phone to record their favorite song. Some musicians are offended if you take their picture or record audio during their performance, others embrace it. For example, Jack White recently required concert goers to lock up smartphones during his concerts to prevent pictures or video[viii]. Other musicians, like Eminem, released smartphone applications to embrace it. Eminem released a free Augmented Reality application, titled “Eminem Augmented,” that concert goers could use to enhance their concert experience. Using the AR Application, Concert goers would see giant objects, like a hockey mask or machete over Eminem during certain songs. Eminem even encouraged his fans to record the AR concert experience and post it to social media[ix].

Not to discourage IP Litigation, but rather than sue Fortnite or other AR/VR developers, potential plaintiff entertainers should consider embracing the publicity. If the entertainer has a platform, such as a TV show or YouTube channel, and they want to target gamers, they may accept the emote as a form of flattery and consider whether working with new technology such as AR, VR and MR, instead of against it, might open up new revenue streams.


[i] Variety: https://variety.com/2018/gaming/news/fortnite-dance-lawsuit-1203092141/
[ii] Ribiero v. Epic Games, Inc., case number 2:18-cv-10412, US Dist. Ct., CDCA
[iii] See Ferguson v. Epic Games Inc., et al., case no. 2:18-cv-10110, US Dist. Ct., CDCA; Baker et al. v. Epic Games Inc., et al., case no. 2:19-cv-00505, US Dist. Ct., CDCA; Redd et al. v Epic Games Inc., et al., case no. 2:18-cv-10444, US Dist. Ct., CDCA
[iv] See Ferguson v. Epic Games Inc. et al.: case no. 2:18 -cv-10110 in the US Dist. Ct., for CDCA.
[v] Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC et al., case number 17-571, 586 U. S. ____ (2019)
[vi] Wired: https://www.wired.com/story/fortnite-marshmello-concert-vr-ar-multiverse/
[vii] Billboard: https://www.billboard.com/charts/hot-100/2019-02-16
[viii] Rolling Stone: https://www.rollingstone.com/music/music-features/artists-to-fans-put-your-phones-away-202263/
[ix] Eminem.com: https://www.eminem.com/news/eminem-releases-new-augmented-reality-app-2018-live-shows