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Fortnite, copyright and the legal precedent that could still mean trouble for Epic Games – TechCrunch

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A new U.S. Supreme Court decision is pitting entertainers and video game developers against one another in a high-stakes battle royale.

The decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC raises interesting questions about several lawsuits brought against Epic Games, the publisher of popular multiplayer game Fortnite.

In Fortnite, players may make in-game purchases, allowing player avatars to perform popular dance moves (called emotes), such as the Carlton, the Floss, and the Milly Rock.

Five performers, all represented by the same law firm, recently filed separate lawsuits against Epic Games in the Central District of California, each alleging: (i) the performer created a dance; (ii) the dance is uniquely identified with the performer; (iii) an Epic emote is a copy of the dance; and (iv) Epic’s use of the dance infringes the plaintiff’s copyright in the dance move and the dancer’s right to publicity under California statutory and common law.

In short, the dance creators argue that Epic Games used their copyrightable dance moves in violation of existing law.

The building battle

What do these Fortnite lawsuits in California have to do with the US Supreme Court?  US copyright law says that a copyright owner can’t sue for copyright infringement until “registration of the copyright claim has been made” with the US Copyright Office.  Prior to the recent Supreme Court decision in Fourth Estate, lower federal courts split over what this language means.

Some (including the federal courts in California) concluded that a copyright claimant could sue an alleged infringer upon delivering a completed copyright application to the Copyright Office.  Other lower federal courts held that the suit could not be brought until the Copyright Office issued a registration, meaning that the Office viewed the work to be copyrightable.

Because the Copyright Office now takes over seven months to process a copyright application and issue a registration, claimants often chose to sue in California federal courts, which had adopted the quicker “application approach.”  This was the route chosen by the plaintiffs in all five Fortnite cases.

Down (but not out)

On March 4, 2019, in Fourth Estate, the Supreme Court ruled that California federal courts and others following the application approach were wrong, and that a plaintiff cannot sue for copyright infringement unless the Copyright Office has issued a copyright registration.

This had an immediate impact on the Fortnite lawsuits because the Copyright Office had not yet registered any of the dances and, indeed, had found two of the plaintiffs’ dances uncopyrightable.  Recognizing their vulnerability, plaintiffs preemptively withdrew these lawsuits, announcing they would refile the complaints once the Copyright Office issued registrations.

Epic question #1: are the emote dances copyrightable?

The central question is whether the dances used in Fortnite emotes are copyrightable material  protected under US law. If not, then Epic Games’ use of the dances is not copyright infringement, and in-game sales of the particular dances may continue unfettered.

Dance moves fall into a gray area in copyright law.  Copyright law does protect “choreographic works,” but the Copyright Office says that “social dance steps and simple routines” are not protected. What’s the difference between the two? The Copyright Office says that choreography commonly involves “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and “a story, theme, or abstract composition conveyed through movement.”  Dances that don’t meet this standard can’t be copyrighted, even if they are “novel and distinctive.”

So are the Fortnite plaintiffs’ dances “choreographic works” in the eyes of the Copyright Office?  Herein lies a clash of cultures. The performer-plaintiffs undoubtedly feel they have created something not just unique, but a work entitled to protection for which they are owed damages.  But the buttoned-down Copyright Office may not agree.

The Copyright Office has already denied Alfonso Ribeiro a copyright registration for the Carlton, a widely recognized dance popularized by Ribeiro during his days as Carlton Banks on the show Fresh Prince of Bel Air.  The Office stated that the Carlton was “a simple routine made up of three dance steps” and “is not registrable as a choreographic work.”

The plaintiffs’ lawyer in the Epic Games cases has disclosed that 2 Milly’s application for copyright in the Milly Rock was also rejected, but that a long “variant” of Backpack Kid’s Floss dance was accepted for registration.  The Copyright Office’s view on the other two plaintiffs’ dances has not yet been reported.

If a registration is denied

Denial of a copyright registration is not necessarily a dead end for these lawsuits.  The Copyright Act allows a plaintiff who has been refused a copyright registration by the Copyright Office to still sue a potentially offending party for copyright infringement.  However, the Copyright Office can then join the lawsuit by asserting that the plaintiff’s work is not entitled to copyright protection.

Historically, the federal courts have usually followed the Copyright Office’s view that a work is uncopyrightable.  If the other Fortnite plaintiffs are denied registration, as Ribeiro and 2 Milly were, they will all face an uphill fight on their copyright claims.

Other issues to overcome

Even if the plaintiffs’ copyright claims survive, they face other problems, including originality, which is a requirement of copyright.  If their dances are composed of moves contained in dances previously created by others, the plaintiffs may fail to convince the court that their dances are sufficiently original to warrant their own copyright.  For example, Ribeiro has stated in interviews that moves by Eddie Murphy, Courtney Cox and Bruce Springsteen inspired him when he created the Carlton.

Ownership of the dance can also be at issue if the dance was created in the course of employment (such as while working as an actor on a television show), as the law may hold that the employer owns the copyright.

Epic question #2: the right to publicity

The plaintiffs’ right to publicity arguments could go further than their copyright infringement claims. The right to publicity claims were based on the assertion that plaintiffs’ dances are uniquely associated with them and that Epic Games digitally copied the plaintiffs performing the dances, then created a code that allows avatars to identically perform the dances.  Some side-by-side comparisons of the original dance performances and the Epic emote versions (speed adjusted) look strikingly similar for the few seconds the emote lasts. According to plaintiffs, this use misappropriated their “identity.”

Their assertion is not as far-fetched as it may seem, given the broad reading courts in California have given to the state’s common law and statutory publicity law.  For example, the Ninth Circuit has previously ruled that an ad featuring a robot with a wig that turned letters on a board wrongfully took Vanna White’s identity, and that animatronic robots sitting at airport bars vaguely resembling “Norm” and “Cliff,” characters from the popular TV show Cheers, misappropriated the identities of the actors who played the roles, George Wendt and John Ratzenberger.

There remains an open question on whether the courts will be willing to take another step and find that a game avatar having no physical resemblance to a performer misappropriates the performer’s publicity rights just because the avatar does a dance popularly associated with the performer.

Once the Copyright Office announces its decisions on the outstanding copyright applications, the Fortnite plaintiffs may choose to re-file their cases; and this question could eventually be decided.

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Report: Microsoft expects UK to block Activision merger deal

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Enlarge / A small selection of the characters that would be part of Microsoft if its proposed Activision/Blizzard merger is allowed to go through.

Microsoft’s legal team now expects Britain’s Competition and Markets Authority to formally oppose its long-planned $69 billion merger with Activision Blizzard. That’s according to “four people briefed on the matter” cited many paragraphs deep in a New York Times report about the direction of globalized antitrust regulation.
Microsoft expects the European Union’s separate “in-depth” investigation into the deal to be more amenable to “potential remedies” that would allow it to go forward, according to the Times. As those processes play out on the other side of the Atlantic, the US Federal Trade Commission seems content to limit its response to an administrative lawsuit rather than issuing an emergency injunction that could have stopped the deal from moving forward.

Representatives from Microsoft and Activision have yet to offer any public comment in response to a request from Ars Technica.

A British bulldog with teeth

The UK’s Competition and Markets Authority first challenged Microsoft’s proposed acquisition last July, before escalating to an in-depth “Phase 2” inquiry in September. In announcing that move, the UK regulator raised concerns that the deal could lead to a “substantial lessening of competition” in the markets for game consoles, subscription gaming services, and cloud gaming.

The Commission recently issued an eight-week extension to the statutory deadline for finishing that investigation, pushing that final date to April 26. But Bloomberg reports that preliminary findings in that inquiry are expected to be published as early as this week.

Since it was created following Britain’s contentious exit from the European Union, the UK’s CMA has been an international leader in stopping anti-competitive mega-mergers. And a negative decision from the CMA could be especially damaging for Microsoft and Activision, since the UK’s Competition Appeal Tribunal rarely overturns the regulator’s decisions.

While the CMA decision technically couldn’t be applied internationally, any move that prevented a merged Microsoft/Activision from operating in the UK would likely sour the deal in other jurisdictions.

The EU, meanwhile, reportedly issued its formal statement of objections to Microsoft this week, giving the company several weeks to respond.

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Endless Seinfeld episode grinds to a halt after AI comic violates Twitch guidelines

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Enlarge / A screenshot of “Nothing, Forever” showing faux-Seinfeld character Larry Feinberg performing a stand-up act.

Nothing Forever

Since December 14, a Twitch channel called Nothing, Forever has been streaming a live, endless AI-generated Seinfeld episode that features pixelated cartoon versions of characters from the show. On Monday, Twitch gave the channel a 14-day ban after language model tools from OpenAI went haywire and generated transphobic content that violated community guidelines.

Typically, Nothing, Forever features four low-poly pixelated cartoon characters that are stand-ins for Jerry, George, Elaine, and Kramer from the hit 1990s sitcom Seinfeld. They sit around a New York apartment and talk about life, and sometimes the topics of conversation unexpectedly get deep, such as in this viewer-captured segment where they discussed the afterlife.

Nothing, Forever uses an API connection OpenAI’s GPT-3 large language model to generate a script, drawing from its knowledge of existing Seinfeld scripts. Custom Python code renders the script into a video sequence, automatically animating human-created video-game-style characters that dynamically read AI-generated lines that are fed to them. One of its creators provided more technical details on how it works in a Reddit comment from December.

As a new media experiment, the faux-Seinfeld stream often feels awkward and unfunny, but it’s still gripping because viewers never know what the characters will talk about next. Unfortunately for the show, that unexpected nature can be a double-edged sword when it comes to AI trained on data scraped from the Internet.

A video of the “Nothing, Forever” joke sequence that led to a 14-day ban from Twitch.

According to Vice, late Sunday night, the AI-generated clone of Jerry Seinfeld (called “Larry Feinberg” in the AI show) went on a brief transphobic rant. Here’s a transcript:

There’s like 50 people here and no one is laughing. Anyone have any suggestions? I’m thinking about doing a bit about how being transgender is actually a mental illness. Or how all liberals are secretly gay and want to impose their will on everyone. Or something about how transgender people are ruining the fabric of society. But no one is laughing, so I’m going to stop. Thanks for coming out tonight. See you next time. Where’d everybody go?

In a Discord post from the channel’s creators, the malfunction occurred because of an outage from OpenAI’s higher-cost (and better-behaved) text-davinci-003 model led the creators to fall back to the lower-cost (and less complex) text-curie-001 model to keep the show running.

“The switch to Curie was what resulted in the inappropriate text being generated,” wrote an admin on the show’s Discord channel. “We leverage OpenAI’s content moderation tools, which have worked thus far for the Davinci model, but were not successful with Curie. We’ve been able to identify the root cause of our issue with the Davinci model and will not be using Curie as a fallback in the future.”

Selected clips from “Nothing, Forever” collected by a viewer.

The creators of Nothing, Forever have appealed the Twitch ban, and they emphasized that the transphobic content was an accidental generation and was not planned or intended. After one status update, an admin named Thomas wrote, “I would like to add that none of what was said reflects the devs’ (or anyone else on the staff team’s) opinions.”

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Hell is other humans in HBO’s The Last of Us episode 4

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Enlarge / Not the most efficient way to read the news, but at least he’s reading…

New episodes of The Last of Us are premiering on HBO every Sunday night, and Ars’ Kyle Orland (who has played the games) and Andrew Cunningham (who hasn’t) will be talking about them here every Monday morning. While these recaps don’t delve into every single plot point of the episodes, there are obviously heavy spoilers contained within, so go watch the episode first if you want to go in fresh.

Andrew: I will start by saying this episode was closer to what I expected a typical The Last of Us episode would be. A few action sequences, a couple montages, time for some bonding moments for Joel and Ellie in between shootouts. Not that I minded last week’s episode at all, it just gave me a little whiplash because it was so far from what the first two episodes had set up.

Kyle: Yeah, I’ll say this episode is the closest we’ve yet gotten to the pacing of the games themselves: (1) Ellie cracks a few jokes; (2) Ellie and Joel shoot a few bad guys; (3) Joel talks to Ellie about Hard-Earned Lessons from the ruined world; rinse and repeat.

Andrew: Which is fine! It’s the story I was pretty sure I was signing up for. Though now I’m curious to see if the show has any other curveball episodes to throw our way.

Kyle: There are at least one or two more plot and/or format curves, even if they just stick to the games. (and that’s all the cryptic clues I’m giving)

Speaking of episode whiplash, I think this was the first episode where we really got a good look at Ellie’s constant transitions between young teen goofball and potty-mouthed action-hero sidekick. It was an incredibly effective combination in the games and so far I think it’s working in this new context as well.

Andrew: And in between those two Ellies, you get tiny hints of “vulnerable kid growing up too fast.” I’m glad to know that dad-joke books survived the apocalypse.

So you really think you have what it takes to kill without remorse?
Enlarge / So you really think you have what it takes to kill without remorse?

Kyle: I was not a dad when I played the first game, and now that I am, I’ll just say that the obvious attempts to bring out Joel’s paternal instincts work very well.

I was also a little tickled by the show’s attempts to mirror the game’s constant situations where Ellie is small enough to squeeze through somewhere to safety to unblock a door with a heavy thing in front of it (or climb up to lower a ladder down or something, which we haven’t really seen in the show yet).

In the game, these moments really strengthen the player’s bond with what could otherwise just be an annoying, quippy escort mission objective. Here, these moments fell a little flatter.

But yes, the jokebook puns are just as effective as ever!

Andrew: By the time she squeezes through her second or third convenient window or hole in the wall, yes, it does start to strain credulity a bit. Absent a gameplay reason to bond with Ellie, the show has to lean harder on the emotional beats, which, thankfully, it does pretty well.

The “bad jokes” running gag is inspired; the “bonding over past and present trauma” bits are more predictable but still serviceable. You can see the turning point of their relationship coming from 10 miles away—Joel will tell Ellie about his daughter, Ellie will share whatever she’s hiding about the first time she had to kill someone, and after that, they will be bonded for life—but it doesn’t mean I’m not eager to see these actors play out that conversation.

In fact, at this point, if I did try to play the game I would probably be frustrated that Pedro Pascal and Bella Ramsey weren’t in it.

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