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 As a result, many claims, including those against Epic Games, were withdrawn until the work could be registered.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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Understanding and Preventing Unintentional Copyright Infringement on Websites

Federal copyright law protects a copyright owner from a wide range of intentional and unintentional infringement. For example, an entity that runs a blog or a website could be liable for copyright infringement if a third party posts copyrighted material onto the webpage. In fact, the federal copyright law is broad and states: “[a]nyone who violates any of the exclusive rights of the copyright owner . . .  is an infringer of the copyright or right of the author, as the case may be.” 17 U.S.C. § 501. In conjunction with the strict liability standard used in copyright infringement cases, violating federal copyright law becomes frequent and difficult to prevent in the digital age.

In light of modern technology, new copyright challenges have emerged, such as one found in Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007), which involved two large technology companies, Google and Amazon. The issue, in essence, was Google and Amazon infringing upon copyrighted photographs because Google’s automated website indexing propagated the photographs in image searches, and subsequently on Amazon for other related services. Although this complex litigation involved a multitude of factors within copyright law, the issue in the case highlights the propensity for unintended copyright infringement with technology.

Fortunately, Congress recognized this issue in 1998 and passed the Digital Millennium Copyright Act, creating safe harbors for unintentional copyright infringement in specific situations. Although the safe harbors are somewhat limited, the law is intended to “balance the interests of copyright owners and online service providers by promoting cooperation, minimizing copyright infringement, and providing a higher degree of certainty to service providers on the question of copyright infringement.” Capitol Records, Inc. v. MP3tunes, LLC, 821 F.Supp.2d 627 (S.D.N.Y. 2011). Ultimately, this means every entity that has a website, blog, or online community of some sort, should take measures to ensure that their online presence fits within a safe harbor or does not violate copyright law.

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