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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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The looming software kill-switch lurking in aging PlayStation hardware

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Enlarge / These consoles could eventually be large paperweights if Sony doesn’t fix a problem looming in their firmware.

Unless something changes, an issue lurking in older PlayStations’ internal timing systems threatens to eventually make every PS4 game and all downloaded PS3 games unplayable on current hardware. Right now, it’s not a matter of if but when this problem will occur.

This ticking firmware time bomb has been known in certain PlayStation preservation and hacking circles for a while. But it’s gaining new attention amid Sony’s recently announced decision to shut down the online stores for PS3, PSP, and Vita software. While that impending store shutdown won’t impact players’ abilities to play and re-download previously purchased software for now, the eventual wider shutdown of PSN servers for these aging consoles could have a much more drastic effect on the playability of a wide swath of games.

What’s the problem?

The root of the coming issue has to do with the CMOS battery inside every PS3 and PS4, which the systems use to keep track of the current time (even when they’re unplugged). If that battery dies or is removed for any reason, it raises an internal flag in the system’s firmware indicating the clock may be out of sync with reality.

After that flag is raised, the system in question has to check in with PSN the next time it needs to confirm the correct time. On the PS3, this online check happens when you play a game downloaded from the PlayStation Store. On the PS4, this also happens when you try to play retail games installed from a disc. This check has to be performed at least once even if the CMOS battery is replaced with a fresh one, so the system can reconfirm clock consistency.

Why does the PlayStation firmware care so much about having the correct time? On the PS3, the timer check is used to enforce any “time limits” that might have been placed on your digital purchase (as confirmed by the error message: “This content has a time limit. To perform this operation go to settings date and time settings set via internet”). That check seems to be required even for downloads that don’t have any actual set expiration date, adding a de facto one-time online check-in requirement for systems after their internal batteries fail.

On the PS4, though, the timing check is apparently intended to make sure PSN trophy data is registered accurately, and to prevent players from pretending to get trophies earlier than they actually had. You’d think this check could be segregated from the ability to load the non-trophy portions of the game, but player testing has shown that this seems to be a requirement to get PS4 games to load at all.

An eventual issue

None of this is a huge problem for most PlayStation owners right now. Yes, the 10- to 20-year lifespan on your average CMOS battery is slowly running out, especially for the earliest PS3 hardware. But replacing the battery and resyncing the internal timer with PSN is a relatively minor annoyance for the time being (assuming you can find a Wi-Fi hotspot and PSN isn’t suffering one of its rare outages).

But nothing lasts forever, as Sony’s recent decisions regarding older PlayStation online stores shows. At some point in the future, whether it’s in one year or 100 years, Sony will shut off the PSN servers that power the timing check for hardware it no longer considers important. After that, it’s only a matter of time before failing CMOS batteries slowly reduce all PS3 and PS4 hardware to semi-functional curios.

Sony could render the problem moot relatively easily with a firmware update that limits the system functions tied to this timing check. Thus far, though, Sony hasn’t publicly indicated it has any such plans, and hasn’t responded to multiple requests for comment from Ars Technica. Until it does, complicated workarounds that make use of jailbroken firmware are the only option for ensuring that aging PlayStation hardware will remain fully usable well into the future.

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Fast and Furious 9 drops a new trailer ahead of June 25 release

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This past weekend, with little to do thanks to the pandemic, I marathoned through the Fast and Furious franchise. That was fortuitous timing, because on Tuesday a new trailer dropped for F9, the next installment, which arrives in theaters on June 25.

We actually got our first look at F9 well over a year ago, when the first trailer dropped at the end of January 2020. Family has been a central theme to the F&F movies, and that continues here. Dominic Torreto (played by Vin Diesel) and the gang have to confront his younger brother Jakob (John Cena), described as “the most skilled assassin and high-performance driver they’ve encountered.” He’s working with criminal mastermind Cipher (Charlize Theron), who sports a much more flattering haircut than in Fate of the Furious, the movie where she improbably hacked a bunch of old cars to drive themselves.

Also returning to the series is Han Lue (Sung Kang), who we all thought died at the end of Tokyo Drift. (This was revealed to be the work of Deckard Shaw (Jason Stratham) who was bad in Furious 7 but then turned out to be good in Fate of the Furious and Hobbs and Shaw.)

Based on this second trailer, the plot for F9 appears to involve magnets, and at one point Tej Parker (Chris “Ludacris” Bridges) and Roman Pearce (Tyrese Gibson) don makeshift pressure suits and take to the skies in what might be a DeLorean with rocket boosters strapped to the roof.

As my colleague Jennifer Ouellette explained last year, “F&F9 will probably make about as much sense as its predecessors—in other words, not much sense at all. And fans wouldn’t have it any other way.”

I know I wouldn’t.

Listing image by Universal Pictures

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It’s Dave Bautista and pals vs. zombie horde in Army of the Dead

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Dave Bautista stars in the zombie heist film Army of the Dead, directed by Zack Snyder.

Fresh off the successful release of Zack Snyder’s Justice League, we’ll soon be getting the director’s latest project: Army of the Dead, about a group of mercenaries that attempts a heist in a zombie-ridden Las Vegas. In a sense, Snyder has come full circle. His directorial debut was 2008’s Dawn of the Dead, an entertaining reboot of the original George Romero classic from 1978.

Army of the Dead started out as a joint project between Universal Studios and Warner Bros. back in 2007. But like so many films, it got stuck in development hell until Zack Snyder signed on as director in 2019. Netflix picked up the distribution rights from Warner Bros. soon after.

Per the official premise:

Army of the Dead takes place following a zombie outbreak that has left Las Vegas in ruins and walled off from the rest of the world. When Scott Ward (Dave Bautista), a displaced Vegas local, former zombie war hero who’s now flipping burgers on the outskirts of the town he now calls home, is approached by casino boss Bly Tanaka (Hiroyuki Sanada), it’s with the ultimate proposition: Break into the zombie-infested quarantine zone to retrieve $200 million sitting in a vault beneath the strip before the city is nuked by the government in 32 hours. Driven by the hope that the payoff could help pave the way to a reconciliation with his estranged daughter Kate (Ella Purnell), Ward takes on the challenge, assembling a ragtag team of experts for the heist.

They include Maria Cruz (Ana de la Reguera), an ace mechanic and Ward’s old friend; Vanderohe (Omari Hardwick), a zombie killing machine; Marianne Peters (Tig Notaro), a cynical helicopter pilot; Mikey Guzman (Raúl Castillo), a go-for-broke influencer and Chambers (Samantha Win), his ride-or-die; Martin (Garret Dillahunt), the casino’s head of security; a badass warrior known as the Coyote (Nora Arnezeder) who recruits Burt Cummings (Theo Rossi), a slimy security guard; and a brilliant German safe cracker named Dieter (Matthias Schweighöfer). Scott finds an unexpected emotional hurdle when Kate joins the expedition to search for Geeta (Huma S. Qureshi), a mother who’s gone missing inside the city. With a ticking clock, a notoriously impenetrable vault, and a smarter, faster horde of Alpha zombies closing in, only one thing’s for certain in the greatest heist ever attempted: survivors take all.

Notaro replaced comedian/actor Chris D’Elia late in the project, on the heels of a number of sexual misconduct allegations against the comedian. This required reshooting some scenes with an acting partner, which were then inserted into the film; Notaro was also inserted into several scenes via digital compositing. She has been fantastic on Star Trek: Discovery, and it will be interesting to see how she fares in Army of the Dead.

The trailer is entertaining, with Kenny Rogers’ “The Gambler” as a musical backdrop, just to set the mood. “There’s 200 million dollars in a vault beneath the Strip,” Tanaka tells Ward and his team. “This should be a simple in and out.” Of course, nothing is ever simple. Vegas is swarming with zombies—faster, smarter zombies, not the classic Romero variety. They’re smart enough to organize, and that, plus their far superior numbers, doesn’t bode well for our human protagonists. (The house, after all, always wins.) But we are definitely on board for the Zombie Elvis and zombie tiger.

Army of the Dead debuts in select theaters and on Netflix on May 21, 2021. If this is as much fun as Snyder’s Dawn of the Dead—and it looks like it could be—Army of Dead should be a huge success. There are already plans for a prequel film focusing on the character Ludwig Dieter (played by Matthias Schweighöfer) and an anime-inspired TV series, Army of the Dead: Las Vegas.

Listing image by Netflix

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