Fortnite Under Siege

Fornite, the video game by Epic Games that has taken the world by storm, has been subject to a number of copyright infringement claims for dances performed by characters in the game. The dances causing problems include those that are well known and new viral sensations such as the “Carlton,” “Backpack Kid” flossing, “Milly Rock” dance, and Halloween “Pump It Up.” While most are relatively standard copyright infringement claims, alleging the characters doing the dances in the game infringe on the copyright, one claim, for infringement of the “Running Man” dance, has an interesting twist.

A recent decision by the United States Supreme Court mandated that a copyright owner must register the work with the Copyright Office prior to filing a claim for copyright infringement. As a result, many claims, including those against Epic Games, were withdrawn until the work could be registered. However, the owners of the “Running Man” dance elected to amend their claim, from a copyright infringement claim to trademark infringement claim. As a defense to trademark infringement, Epic Games is asserting that the claims are preempted by the Copyright Act. Although no one disputes that the name of a dance can be protected under trademark law, it is unclear whether a court will decide if the dance itself is protected; typically a dance is protected by copyright, as choreography.

This could open the door for more claims against Epic Games for dances used in Fortnite, but the more impactful consequence is the potential to further define the scope of what constitutes a trademark. If it is ultimately determined that a dance can be a protectable trademark, that would add to the list of protectable marks, which already includes color, scent, sound, designs, layouts, and words.

VW Contributor: Alex Rainville
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Must I Register a Copyright With the Government to Receive Protection?

An Intellectual Property FAQ with Mark A. Williams.

Copyright protection attaches as soon as you create something. So, if you write a song or a book or even an article, as soon as you write it–you own it and you have the right to exclude other people from reproducing it, copying it, distributing it or really making any money off of it. The benefit of registering your copyright is that it is easier to get damages and you can get attorney fees.

If you find someone infringing your copyright, the first step you usually want to take is to consider registering your copyright, if you haven’t already done so, and then give notice to that offender that you believe they are infringing your rights. That way if you do have to file a lawsuit against them, it is easier for you to obtain damages and stop them from continuing to violate your copyrights.

© 2014 Parsonage Vandenack Williams LLC

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