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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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Dread Pirate Roberts escaped development hell: Making Silk Road work as a film

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Trailer for Silk Road.

In the last decade or so of Ars, two pre-COVID news stories stand out to me as the “biggest”—the kind of stuff that captivates a general audience in the moment and will attract the eyes of Hollywood eventually. The first one happened back in 2013, when former NSA contractor Edward Snowden leaked classified documents that showed the US had a secret surveillance program up and running that even monitored US citizens. To make the saga even juicier, Snowden ultimately had to flee the country for fear of legal retribution.

The second story largely unfolded in that same year. A young libertarian named Ross Ulbricht pondered why in the United States you couldn’t purchase drugs freely and openly on the Internet through some kind of one-stop repository like Amazon. Eventually, his Silk Road website sprung up and captivated the world… until federal authorities finally closed in on Ulbricht in a San Francisco library in October 2013. The arrest led to an eye-opening trial and a life sentence for the pseudonymous Dread Pirate Roberts.

Snowden’s story ultimately got the Hollywood treatment, via the Oscar-winning documentary Citizenfour in 2014 and a fictionalized account starring Joseph Gordon-Levitt two years later. And though it took a bit longer (unless we’re counting a made-for-TV documentary), the Silk Road odyssey has finally made its feature film debut, too.

After years of rumors and vetted projects, Silk Road had a February VOD run and arrived on Hulu this month. Previous attempts to get a film in the can included industry royalty as big as the Coen brothers (that one would have been based on coverage by our Condé brethren Wired.). But time and again, these initiatives sputtered out during some stage of “development hell”—scripts that weren’t quite right, issues with casting and budget, etc. What actually got the job done was paring down rather than expanding the scope of this complex crypto crime thriller.

“There’s a long history of attempts to get this movie made—there were many competing projects at one time, I think there were four or five,” says Duncan Montgomery of High Frequency Entertainment, the production company that helped get Silk Road (based on this Rolling Stone piece) done. “[When we were finally brought on], we started giving our opinion directly to everyone: it needs to be a smaller film.

“[Screenwriter/director] Tiller Russell had interesting elements—the cat-and-mouse detective stuff that gets out of the box and has some entertaining aspects. But this was never going to be a $30 to $40 million-budget film,” he told Ars this spring. “So when Imagine Entertainment’s deal with the other producer expired, we stepped in and got the rights. And I think Imagine was OK with that, because by then they understood it wasn’t going to be a fit for the kind and size of films they like to make.”

How to make a Silk Road film, step one: narrow it

Anyone who followed even a tiny amount of the Silk Road news coverage can probably close their eyes and imagine how a studio might see this as a globetrotting blockbuster. It’s the Stefon of source material: the Silk Road had everything. Worldwide reach with major happenings in San Francisco, Austin, and DC. Bleeding-edge technology leveraged for lucrative crime. Drugs galore. An alleged murder-for-hire scheme. Dirty cops capable of major schemes and good cops capable of intricate investigation. And at the center of it all stood a stubbornly ideological kingpin who ultimately turned out to be more bluster and brains than brawn.

All that drama happens long before you even get to the tense arrest attempts and courtroom fireworks. But taking this huge story and translating it into a film that could be successful at the (before times) box office while keeping a normal runtime isn’t simple. Montgomery says the team started by identifying then tackling two core challenges: the scope and the screens.

“To this day, there’s so much we had to leave out. Really, what this needs is a six-hour limited series,” he tells Ars. “So that was really hard, and it had to find a balance. Do we just tell Ross’ story? Do we even have enough time? Then we ultimately had a DEA agent who’s really an amalgamation of real people. We didn’t feel comfortable from a legal standpoint telling Carl Force’s story or using another guy, so we made a combination of several.”

To maintain this narrow focus, Silk Road unfolds in parallel storylines. On one side, the film follows Ulbricht, played by Nick Robinson (Jurassic World). Montgomery has lived in Austin, Texas, since the ’90s, and he remembers having friends that put him a degree of separation away from a young Ulbricht. But despite how captivating the team found Ulbricht’s backstory while working through the research, the film ultimately skips the Silk Road founder’s upbringing and college years, and it halts before the courtroom drama.

What’s covered, however, is extremely loyal to reality. Silk Road had Ulbricht’s former girlfriend Julia Vie as a consultant who also optioned her story rights. The film shows Ulbricht problem-solving early marketing and technical hiccups until he increasingly loses his grip on reality. He goes from philosophically driven entrepreneur with a life to man whose site is his sole focus. And as nefarious as some of his choices and motivations ultimately become, Silk Road does sympathize with this character—a stubborn but personable young adult driven to a dangerous obsession that wipes out his humanity.

“On Ross’ side, that portion of the story is very, very accurate,” Montgomery says. “[Vie] lived with him during that time, so she more than anyone else—even more than his family, his friends—knew. We don’t always tell our parents everything. But it’s much harder to hide it from her, so he was very open with her story… The FBI had interviewed Vie and decided she was not a suspect, so she felt very free to talk with us. They had a relationship we could explore, and we could share their intimacy.”

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Review: Old is a mostly solid film undermined by jarring twist ending

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A family on a tropical holiday discover that the secluded beach where they are relaxing for a few hours is somehow causing them to age rapidly in Old, a new thriller from M. Night Shyamalan.

Director M. Night Shyamalan has a well-known fondness for his signature surprise twist endings. When those twists work organically, we get classics like The Sixth Sense and Unbreakable. When they don”t—well, if you’re lucky, you get something like his new film, Old, in which everything that comes before is sufficiently compelling that you can almost shake off a jarring final twist that feels so forced, it’s almost like it belongs in an entirely different movie.

(This being an M. Night Shyamalan film where surprise twists are tantamount, I have taken great pains to avoid spoilers. There is nothing discussed in the review below that has not already been revealed in the film’s trailers.)

Old is based on a French graphic novel called Sandcastle, written by Pierre Oscar Levy (also a documentary filmmaker) and illustrated by Frederik Peeters. It’s about a group of 13 people who find themselves trapped on a mysterious, secluded beach where time moves much more quickly—so quickly that young children reach puberty in a matter of hours, and everyone will reach old age and die within 24 hours. Shyamalan received a copy of the book as a Father’s Day gift, and was immediately touched by how it humanely grappled with the all-too-human fear of aging and the relentless passage of time.

Shyamalan’s film is not a direct adaption of the graphic novel, although it keeps the same central premise and several key scenes. It’s more of a re-imagining, with the director fleshing out the narrative and amping up the tension to create an existential thriller that feels more like a “two-hour Twilight Zone episode,” per Shyamalan. Married couple Guy (Gael Garcia Bernal, Mozart in the Jungle) and Prisca (Vicky Krieps, The Phantom Thread) Cappa decide to take a family vacation at a luxurious tropical resort with their two children: daughter Maddox (Alexa Swinton), age 11, and son Trent (Nolan River), age six.

The resort manager (Gustaf Hammarsten) arranges a special excursion for the family: a day at a secret, secluded beach. They are not the only chosen ones. There is also a hip-hop artist named Mid-Sized Sedan (Aaron Pierre, Krypton); another married couple, nurse Jarin (Ken Leung, Star Wars: The Force Awakens) and psychologist Patricia (Nikki Amuka-Bird, Jupiter Ascending); and a cardiothoracic surgeon, Charles (Rufus Sewell, Man in the High Castle), his trophy wife Chrystal (Abbey Lee, Lovecraft Country), his mother Agnes (Kathleen Chalfant, The Affair), and their six-year-old daughter, Kara (Kylie Begley).

Nothing seems amiss at first, despite the lack of cell phone service, although the children do discover a stash of other people’s personal belongings half-buried under the sand. Then the corpse of a young woman washes up on the beach, and things take a turn for the creepy. Anyone who tries to leave the beach inevitably blacks out. The corpse decomposes in record time, and the children age several years over the course of a few hours. The beach essentially reduces 50 years of life into a single day, making their collective escape a matter of survival.

This is a fantastic concept, and one can see why it appealed to Shyamalan, who uses the premise to explore how the very different personalities trapped on the beach respond to their predicament. Visually, Old is a gorgeous film, almost entirely shot at Playa El Valle in the Dominican Republic. Shyamalan said his angular cinematographic approach was inspired by Akira Kurosawa’s Ran and Rashomon, in order to create an increasingly claustrophobic feel to what starts out as an idyllic beach setting. Composer Trevor Gureckis’ score reinforces the sense of foreboding with strings playing detuned harmonies, and tribal bass drums evoking the relentless forward march of time.

There are some truly lovely moments in Old, especially with the Cappa family. Guy and Prisca must confront the issues in their marriage, and struggle with watching their kids grow up way too fast—something Shyamalan, father to now-grown daughters, understands very well. Both Bernal and Krieps give exquisitely subtle performances, while Thomasina McKenzie (JoJo Rabbit) and Alex Wolff (Hereditary) are equally effective as the teenaged Maddox and Trent, respectively

Unfortunately, the other characters aren’t nearly as fully developed, although the talented cast does its best to bring depth to underwritten roles that amount to little more than stereotypes. This is especially disappointing in the case of Chrystal, the trophy wife, whose entire sense of self-worth rests on her youth and physical beauty. Ours is a culture that treats aging women particularly harshly, and there could have been a fascinating character arc for Chrystal where she genuinely grappled with what sudden, rapid aging means for her sense of self. Instead, she becomes increasingly monstrous, which is far less interesting.

The biggest issue with the film is that Shyamalan just can’t resist trying to be clever, thereby undermining the reflective, almost elegiac notes he achieves in the final act. All I will say about that twist ending is that it feels tacked on as an afterthought, and is utterly inconsistent in tone with everything that comes before. Some things are best left unexplained. (The graphic novel that inspired Shyamalan, for instance, never explains the strange aging anomaly on the beach, and ends with a cryptic scene of a young child building a new sandcastle all alone.)

I came out of the screening with mixed feelings, convinced that Old would prove to be divisive with both critics and audiences, and thus far that seems to be the case. (It’s even languishing a bit at the box office, although that’s probably as much due to spiking COVID cases dissuading folks from going to theaters as anything else.) Shyamalan has made several films hammered by critics at the time of their release, which were later re-assessed more favorably (see The Village). Perhaps Old will also be favorably re-assessed a few years down the road, despite its flaws, since it really does successfully evoke both an existential sense of dread, and an ultimate acceptance of human mortality.

Old is now playing in theaters. We strongly recommend only watching movies in theaters if you have been fully vaccinated.

Listing image by Universal Pictures

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Star Trek: Lower Decks S2 trailer promises more scrappy underdog adventures

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Our favorite ensigns are back with more wacky hijinks in the second season of Star Trek: Lower Decks.

The animated series Star Trek: Lower Decks was one of our favorite TV shows of 2020, so we’ve been looking forward to its second season. We won’t have long to wait. S2 drops next month on Paramount+, and the studio debuted its first trailer during the Star Trek Universe panel at Comic-Con@Home 2021. That same panel also gave us our first teaser for another new animated series, Star Trek: Prodigy.

(Spoilers for S1 of Star Trek: Lower Decks below.)

As we’ve reported previously, this is the first animated Star Trek series since the Emmy-award-winning Star Trek: The Animated Series (TAS), which ran from 1973 to 1974. Lower Decks is part of a five-year overall deal that Star Trek: Discovery co-creator and showrunner Alex Kurtzman signed with CBS to expand the franchise. Kurtzman tapped Rick and Morty head writer Mike McMahan to spearhead the project. Chronologically, it takes place after the events of the 2002 film Star Trek: Nemesis; the name is an homage to an episode of Star Trek: The Next Generation (TNG). 

The first season, which premiered last August, introduced us to the support crew serving on one of Starfleet’s least important ships, the USS Cerritos, in 2380: Ensigns Beckett Mariner (Tawny Newsome), Brad Boimler (Jack Quaid), Sam Rutherford (Eugene Cordero), and D’Vana Tendi (Noël Wells). Mariner adopts a lax approach to following the rules, which contrasts sharply with the attitude of Boimler, who is a stickler for the rules and dreams of being captain of his own starship one day. Rutherford sports a cyborg implant and bears some resemblance to Geordi La Forge from TNG, while Tendi is an eager-to-please new addition to the medical bay. As Mariner says, “We’re not really elite. We’re more the cool, scrappy underdogs.”

Their madcap S1 adventures included the crew dealing with an alien viral outbreak that turns crew members into raging zombies; Boimler getting slimed by an alien farm animal; Tendi creating a pet dog despite her limited knowledge of canine anatomy; and Mariner getting drunk with a Klingon general who proceeds to steal the shuttlecraft.

Who could forget Boimler’s briefly homicidal holographic assistant Badgey? And we could all benefit from “The Boimler effect,” a mandate that encourages scheduling in “buffer time” so crew members can complete tasks at their own leisurely pace. We also got guest appearances by Riker (Jonathan Frakes), Deanna Troi (Marina Sirtis), and everyone’s favorite extra-dimensional being, Q (John de Lancie).

In her review for Ars Technica, Kate Cox described the series as “comfort food with a comic twist.” It included sufficient winks and nods for hardcore Trekkies without veering too far into over-indulgence. “In a universe of lofty goals and monologued moral exhortations, Lower Decks primarily begs us to check ourselves before (and after) we wreck ourselves and to take the opportunities to screw around, have fun, and enjoy the absurdities of space when they are presented,” she concluded.

So what can we expect from S2’s ten episodes? McMahon has said the season will combine standalone episodes with season-long character arcs, including one involving Mariner and Tendi. The season will not undo any of the events of S1, which saw the demise of security chief Lieutenant Shaxs (Fred Tatasciore), who sacrificed himself to save Rutherford. Rutherford will be struggling with some lingering memory issues as a result of those events, and Boimler will now be working on the USS Titan. Meanwhile, Mariner and Captain Carol Freeman (Dawnn Lewis)—revealed to be her mother last season—will be learning how to work together. We’ll also be seeing more of Riker as captain of the Titan, plus some additional cameos by other characters from past Star Trek series.

Teaser for new animated series Star Trek: Prodigy.

Star Trek: Prodigy will be a very different beast, aimed at a younger audience than the usual Star Trek fare. It’s set in 2383 and takes place after the events of Star Trek: Voyager. In fact, Kate Mulgrew will return to voice Captain Kathryn Janeway—or rather, her appearance as the ship’s Emergency Training Hologram. The show is expected to be different from Lower Decks in both tone and visual style, and this first teaser is certainly in keeping with that idea. Per the official premise:

Star Trek: Prodigy is the first Star Trek series aimed at younger audiences and will follow a motley crew of young aliens who must figure out how to work together while navigating a greater galaxy, in search for a better future. These six young outcasts know nothing about the ship they have commandeered—a first in the history of the Star Trek Franchise—but over the course of their adventures together, they will each be introduced to Starfleet and the ideals it represents.

The main cast features Brett Gray as Dal, a 17-year-old “maverick”; Rylee Alazraqui as Rok-Tahk, an eight-year-old Brikar who loves animals; Angus Imrie as Zero, a non corporeal energy-based Medusan; Jason Mantzoukas as Jankom Pong, a Tellarite who enjoys playing devil’s advocate; Ella Purnell as Gwyn, a Vau N’Akat who grew up on a mining planet; and Dee Bradley Baker as Murf, an “indestructible blob” who likes to chow down on ship parts. In addition, guest star Billy Campbell will be back as rogue freighter captain Thaius Okona from TNG.

Star Trek: Lower Decks S2 will debut on Paramount+ on August 12, 2021, and the show has already been renewed for a third season. Star Trek: Prodigy is expected to land later this year with ten episodes on Paramount+. After that, it will air on Nickelodeon.

Listing image by YouTube/Paramount+

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