Battle Royale: A Showdown Over Creative Expression
Written By Matthew Taghavi
The Fortnite Phenomenon
Fortnite is a phenomenon that has, for gamers, combined two seemingly unrelated concepts into an entertaining video game. Fortnite combines the cartoon elements of building games like Minecraft with the action of shooters like Call of Duty, resulting in tremendous success. Fortnite has approximately 200 million players, has brought in an estimated $1 billion in revenue from microtransactions, and has received $1.25 billion via investments. The company behind Fortnite, Epic games, was recently valued at $15 billion.
Fortnite’s business model is not unique, but it is effective. Fortnite is a “free to play” game, meaning it costs nothing to obtain and play—anyone with a video game console or mobile device can download it for free. Instead of charging to play, Fortnite makes money through transactions within the game itself, known as microtransactions. For example, for $9.99 players can purchase 1,000 “v-bucks.” These v-bucks can then be used to unlock cosmetic accessories in the game, such as costumes or dances for their in-game characters. An example is illustrative.
Fortnite’s success has not come without a price. Specifically, Fortnite is now being accused of stealing the intellectual property of various artists and individuals. Many of the dances Fortnite uses in its game are exact copies of dances created by people in the “real world.” Fortnite seemingly uses these dances without asking for consent. One of these artists, Terrence Ferguson (also known as rapper “2 Milly”), filed a lawsuit in the Central District of California alleging, among other things, that Fortnite illegally used his dance “Milly Rock,” in violation of the Copyright Act of 1976. Other artists followed his lead shortly thereafter. The question now is, do they have a case?
Copyright Law in the United States
The issue presented by these cases is seemingly simple, but complex in nature: can an individual copyright a dance? The Copyright Act of 1976 is the federal law that exclusively governs modern copyright disputes and protection. In order to have protection under the Copyright Act, a party must demonstrate three things: work of authorship, originality, and fixation. Because fixation is not at issue in the Fortnite case, only the first two requirements are relevant here.
Work of authorship is a requirement created by law. Copyright protection only exists in “expression” which is legally recognized. The Copyright Act was the first federal law to recognize that dance movements, or “choreographic works” as the Act puts it, could be legally protected. However, the Act does not define what choreographic works means. The legislative history of the Act states that “choreographic works” is not defined because the term has a “fairly settled meaning.” The Congress that passed the Act felt that it was so obvious that “simple routines” are not protectible that it did not find it necessary to define the term. Ironically, the definition and scope of choreographic works is the issue here.
Originality is a requirement created by the constitution. In order to acquire copyright protection, an expression must have some minimum degree of creativity. When determining creativity, courts will not judge the artistic value of a work, but will look at whether the work has some creative spark. Ultimately, creative spark is nothing more than the selection and arrangement of ideas. A work becomes protectable expression when there are a sufficient number of choices made to display creativity. This is typically an easy standard to meet, but if a work of authorship involves no choices at all it cannot be protected.
Section 102(b) of the Copyright Act complicates the matter. Under the Act, only the expression of ideas may be protected, not the idea itself. For example, the Copyright Office has suggested that “commonplace movements,” such as yoga positions, are not eligible for copyright protection because they lack a “sufficient amount of authorship.” The Copyright Office has also ruled that copyright protection does not extend to individual words, short slogans, or phrases. These examples illustrate what is known as the “idea/expression dichotomy,” which is codified in Section 102(b). This legal concept exists to limit the scope of copyright protection described above. Thus, even original works of authorship will not be protected if they are characterized as ideas. This limitation is necessary to reinforce the basic purpose of copyright law, which is to incentivize the creation of new works. Since all new expression borrows from basic concepts and ideas, it would be impossible to create new works if such ideas were protected by copyright. If the outline of a woman could be protected by copyright, the Mona Lisa would likely be an infringing and unlawful painting. Thus, a line between idea and expression must be drawn to ensure new works are created.
Frivolous lawsuit or legitimate complaint?
With regard to the Fortnite lawsuit, do the dances at issue here meet the requirements of copyright protection? The answer is maybe. The plaintiffs in these cases have alleged that Fortnite has directly infringed on their copyright by creating an unauthorized derivative work. However, before the court can deal with the issue of infringement, the plaintiffs will have to show that their dances are capable of being protected. They will have to demonstrate that these dances are sufficiently original by pointing to the different artistic choices they made. Epic Games, the creator of Fortnite, will likely respond by arguing that “choreographic works” does not include the type of dance moves at issue here because they are too simple. Epic Games may point to some of the elements that the Copyright Office has identified as being necessary to a choreographic work, such as a performance by a highly skilled individual or a story conveyed through movement. Epic games might argue that since the dances at issue here convey no message and require little skill that they are not deserving of copyright protection. While the Copyright Office’s statements are not binding law, they will be highly persuasive for the court in deciding this matter. Even if the court does find that the artists have protectable expression, they will then have to decide whether Epic Games infringed on this protection. In such a scenario, the court would have to decide whether the dances in Fortnite are similar enough to the dances in the real world. In short, the question would become whether Fortnite copied the expression or the idea.
This is a rather novel issue, and many scholars find these lawsuits are intriguing because the law is rather unclear. The California court will have to clarify the scope of protection afforded by the Copyright Act to choreographic works. Choreographers rarely litigate these types of matters, and artists have generally not taken legal action in these situations. In the past, the United States Court of Appeals for the Ninth Circuit has stated that “[e]xplicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.” This remains true today.
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)
Baker v. Selden, 101 U.S. 99 (1879)
Bikram’s Yoga College of India v. Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015)
Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir. 1986)
United States Copyright Office, Copyright Registration of Choreography and Pantomime, Circular 52.
Shanti Sadtler, Preservation and Protection in Dance Licensing: How Choreographers Use Contract to Fill in the Gaps of Copyright and Custom, 35 Colum. J.L. & Arts 253, 257 (2012).
37 C.F.R. § 202.1
Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (Oct. 19, 1976), codified at Title 17 U.S. Code Annotated.
Sarah E. Needleman and Katie Roof, Fortnite Creator Epic Games Valued at Nearly $15 Billion, Wall Street Journal.
Photo courtesy of Epic Games.