‘Fortnite’ and Copyright Infringement

Developed and published by American video game and software development company Epic Games, the videogame Fortnite has been played by over 250 million players since its global launch, quickly becoming a cultural phenomenon. The game has seen support from notable companies, such as Disney and Marvel, who have collaborated with Epic Games to promote their Avengers franchise through time-limited, in-game content, such as Thanos’ Infinity Gauntlet which featured in the game last year. Celebrities have also become huge fans of the game, with musician Drake reaching record levels of viewers on popular live streaming site Twitch whilst playing Fortnite, and former First Lady of the USA, Michelle Obama, performing some of the dance moves that appear in Fortnite whilst visiting a Children’s hospital. To date, Fortnite has generated an incredible 2 billion dollars worldwide.

Fortnite is a multi-player online game popular for its battle royale mode, in which 100 players compete against each other to be the last person standing. The game begins on the ‘Battle Bus’ which flies over the competition arena. Players can then elect when to leave the bus – a strategic decision not to be made lightly, as your landing area determines how soon you find items to help survive.

One feature of Fortnite are its cosmetic items including, but not limited to, character costumes, glider skins, and emotes. These cosmetic items do not increase the chances of winning but allow players to customise their character. Emotes are animations that the players’ character performs on screen, either to communicate with other players, or simply for fun. Some of the most popular emotes in Fortnite are dances.

Although dance emotes have existed in games since 1990, and feature in several large games today (games such as Destiny, Overwatch or NBA 2k18), it is Fortnite’s huge success that has brought the dance emotes to the attention of the global media. Epic Games have faced a number of copyright infringement law suits in the US, notably filed by the Backpack Kid (creator of The Floss dance), Alfonso Ribiero (performer of the iconic Carlton Dance which appears in The Fresh Prince of Bel-Air), and rapper 2 Milly (creator of the Milly Rock dance), amongst others.

Side by side comparrison of a Fortnite character dance emote and the iconic Carlton dance via GIPHY

Copyright in the US is an automatic protection, however the law differs from UK law in that should a party wish to bring proceedings for copyright infringement, they would need to register their copyright with the US Copyright Office prior to filing their claim. Consequently, the law suits in the US against Epic Games have been withdrawn – the law firms representing the above mentioned dancers are waiting for the US Copyright Office decisions on whether to grant copyright protection before proceeding.

The Fortnite dance cases have raised an interesting question about the status of dances in the UK, what protection is available for budding choreographers and dancers who want to create their own dances, and what considerations games developers should make when including dance moves in their game play.

Dance moves and dances can be protected by copyright laws in the UK as they fall under the protected work category of dramatic work (section 3(1) Copyright, Designs and Patents Act). Dramatic work can include a work of dance or mime so if a dance meets the criteria below, it will be protected by copyright as a dramatic work.

To receive copyright protection, your dance or move would have to satisfy two main criteria under the Copyright, Designs and Patents Act 1988; (1) the dance has to be original, and (2) must be recorded in some form. Generally, if your dance was created by you and is your own work, and you have, for example, filmed your dance, this would attract copyright protection.

There is no requirement to register your copyright – it’s an automatic right that exists once the criteria mentioned above have been met.

A video games developer has used my dance move in their game – do I have a claim?

A developer will infringe on your copyright if they, without your permission, use the whole or a substantial part of your dance in their video game. The term ‘substantial’ can mean many things and its definition will vary case by case. If the part of your dance they have copied is, for example, iconic or well known, it could be classed as ‘substantial’.

Another requirement to prove infringement is that the company has had the opportunity to copy your dance. If you have uploaded your dance online, such as through YouTube or other social media sites, you may be able to use this as proof of that opportunity. For instance, the Floss dance was first featured on ‘the backpack kid’s Instagram account in 2016, where it gained some popularity. The presence of the videos on social media and the popularity of the dance move would help the backpack kid to prove that Epic had had the opportunity to copy the dance moves from him if they contested this.

I am a games developer, should I avoid using dance moves in my game?

Not necessarily – there are some ways in which you can legally use dance moves in your game.

• If you have taken inspiration from a dance move you saw elsewhere, you could reach out to the performer and find out if they are happy for you to use the dance move in your game. They may be willing to let you use the dance in return for acknowledgement or a credit, or they may ask for a fee or royalties from the income you receive as a result of using the dance. Agreements and contracts can be written to govern the terms of these types of relationships and it is always prudent to talk to a solicitor prior to entering any agreement.
• If you are using a dance move in a parody or other comic manner, you may be able to rely on the defence of caricature, parody or pastiche. This falls under the fair dealing category of copyright defences which are set out in the Copyright, Designs and Patents Act. You would need to prove that you have given sufficient acknowledgement to the performer in your game. It is worth noting that this is a risky strategy as the ultimate decision on whether or not the defence succeeds would be determined by a judge after a lengthy court procedure.
• Hiring a choreographer would allow you or your company to create moves and dances unique to your game. In this case, you will need to ensure that you have the rights to use the choreographers work in your game. IP rights will usually be addressed in a contract between the choreographer and the company hiring them – as above, it is prudent to contact a specialist IP lawyer prior to entering into an agreement to ensure that your rights are being protected.
• You could use dances and dance moves that don’t fall under copyright protection. This could be dance moves that are so old that any copyright will have expired, or such small parts of dance moves or dances that they wouldn’t fall under the ‘substantial’ criteria mentioned earlier in this article. As dance moves fall under dramatic works for copyright purposes, copyright protection on dance moves runs for 70 years from the death of the original creator – anything outside of this time frame can be used.