CULTURE

Fortnite and Intellectual Property: Who Owns Cultural Trends?

With three high profile figures filing lawsuits against the company for marketing their likeness, the video game phenomenon is challenging who owns choreography.

Epic Games' Fortnite is at the center of controversy surrounding copyright and the limits of intellectual property laws. With three high profile figures filing lawsuits against the company for marketing their likeness, the video game phenomenon prompts a conversation about who owns culture.

The Battle Royale style game features customizable avatars, for which users can purchase "emotes," specific gestures or dance moves that avatars can perform in the game. The problem is that "emotes" are designed to appeal to millions of international users, with many replicating wildly popular dance trends and cultural icons. Select "emotes" are based on Snoop Dogg's "Drop It Like It's Hot" dance, Psy's "Gangnam Style," and Donald Faison's "Poison" dance from the US sitcom Scrubs.

Tenor

However, Fortnite's creators did not secure licenses to recreate these artists' likenesses in their game. But it's unclear under U.S. law whether or not a segment of choreography even qualifies for copyright protection. As highlighted by the Wall Street Journal, the U.S. Copyright Office's stance on choreography dictates that it "cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive." They elaborate that "social dance steps and simple routines" are not protected by copyright "even if they contain a substantial amount of creative expression."

In fact, few dance moves have been successfully copyrighted. Michael Jackson was able to patent his impressive leaning move featured in the "Smooth Criminal" music video–but only because he invented the special shoe that makes it possible. Since each one of Fortnite's "emotes" is a short movement and not a creative song or dance of its own, copyright lawyers can't agree about whether or not infringement laws apply.

The first "emote" to challenge what constitutes copyright infringement is called "Swipe It," which replicates the dance move recognizable as the "Milly Rock." Its creator, rapper 2 Milly, born Terrence Ferguson, was the first to sue the game with allegations that Fortnite violates copyright law by selling his "signature" choreography. He told Rolling Stone, "My dance is my signature. Everybody would tell you, from here to Alaska, 'Hey, that's the Milly Rock.' I don't mind people doing it in their videos. What I do mind is when somebody takes what I created and sells it."

While the "Milly Rock" became a viral dance move in 2015, it isn't a full choreography set. Christine Lepera, attorney for music industry giants like Drake and Timbaland, argues that a single dance move is precluded from copyright infringement: "You cannot copyright certain dance moves that are generic. From what I've seen online, I've done these [Milly Rock] moves in hip-hop [dance] class for years — it's a pivot, heel-out, heel-out, and swing your arms."

Amino Apps

The second creator to file charges against Epic Games is Alfonso Ribeiro, best known for playing Carlton Banks on The Fresh Prince of Bel-Air. He alleged that the "emotes" called "Fresh" plagiarizes the "Carlton Dance," made famous by the beloved sitcom character Ribeiro played in the 90s. However, copyright lawyer Scott Alan Burroughs argues that an actor doesn't own his character's stylized, or "signature," movements, since the character is owned by the production company. Burroughs says, "[Ribeiro] created and performed that dance while acting on a television show he was a performer on, so it was likely 'work for hire' that belongs to the show's producers."

The third creator to file charges against the game is actually the mother of Russell Horning, a 17-year-old content creator on YouTube who popularized "the floss" dance. Again, Fortnite sells a "Floss" emote that the Hornings claim infringes upon their legal right to share in the profit made through dance move.

2048

But how much money does Fortnite make from selling "emotes?" For that matter, how does a game that's technically free to play earn Epic Games over $2 billion in 2018? When the Fortnite App launched on Apple's IOS in April, the game reportedly made $2 million a day, making history as the first to net over $1 billion by following a free-to-play model.

The secret–and the root of the controversy–is the game's profit from microtransactions. While all users can play the entirety of the game for free, they have the option of purchasing in-game currency, called "V-bucks," which allows players to customize their gaming experience. With an exchange rate of approximately 1 USD to 100 V-bucks, users are offered deals to spend anywhere from $2 to $20 on cosmetic skins, game modes for their characters, and, of course, dances. Michael Pachter, an analyst at Wedbush Securities, noted, "On the revenue side, [Fortnite has] done something that's really unique, which is come up with a perception of exclusivity." He added, "If you see another player in a leopard skin and go to the store and see it's no longer available, you think, Shoot, I've got to move on it next time."

All three complainants are represented by the law firm Pierce Bainbridge Beck Price & Hecht LLP. In addition to copyright infringement, the lawsuits allege violations of the rights to publicity, which are creators' rights to control and profit off any use of their likeness, name, or other distinct traits. David L. Hecht, the representative for 2 Milly, Ribeiro, and Horning, insists that his clients have exclusive rights to the cultural trends they've instigated, stating, "I will say you can absolutely copyright choreography, and you can leave it there." Whether U.S. law is in agreement with him is for a judge to decide in 2019.

Meg Hanson is a Brooklyn-based writer, teacher, and jaywalker. Find Meg at her website and on Twitter @megsoyung.





POLITICS

What Happens When the President Declares a State of Emergency?

The President can take control of your home, your money, and—worse—your internet in the event of a national emergency. Well, sort of.

In the past, Donald Trump has threatened to declare a "national emergency" in order to forcibly move forward with his plan for a $5.6 billion border wall. A state of emergency, designated for times of crisis and national instability, is meant to accelerate the government's political process in order to restore stability. When presidents declare national emergencies, the law provides hundreds of provisions that endow the commander-in-chief with "extraordinary authority" to make executive decisions without asking congress for approval.

After the National Emergencies Act of 1976 (NEA), presidents must identify which specific powers they're asking to activate in order to address the designated emergency–which means selecting a few out of approximately 130 laws that grant special authorities to the President. Barack Obama invoked those powers 13 times over his eight years in the White House; similarly, George W. Bush did so 12 times over his two terms. One major dilemma with the NEA, however, is that it does not create a time limit within which a state of emergency must be resolved, allowing for various national emergencies to remain ongoing simultaneously (in 2017, there were 28 concurrent active emergencies). This, of course, allows the sitting President to hold "extraordinary authorities" for an indeterminate period of time.

Another yet greater shortcoming of the NEA is that it doesn't define what constitutes an "emergency," allowing a President to interpret current events–and the laws–in his own way. Alarmingly, the President doesn't operate under many limitations when it comes to defining and declaring a national emergency. Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, says, "There aren't a lot of legal limits on his ability to do that, frankly, even if there isn't a real emergency happening."

Over the course of Trump's first two years as President, he declared three events to be national emergencies, including the H1N1 influenza epidemic and a series of cyber-hacking activities that still technically constitute a national emergency to this day. Recently, Trump has openly called the US-Mexico border a crisis situation, saying, "We have a crisis at the border, of drugs, of human beings being trafficked all over the world, they're coming through . . . criminals and gang members coming through. It is national security. It is a national emergency."

So what happens when a President does declare a national emergency?

According to the Congressional Research Service, there are hundreds of specific provisions codifying what the president is allowed to do–and those powers are far-reaching and invasive into daily American lives. While "the vast majority of them are of the stand-by kind — dormant until activated," a state of a national emergency allows the President to: "seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens."

NY Times

What It Means:

1. Presidents can control funding

Trump could declare a national emergency in order to fund his wall. As Kim Lane Scheppele, a professor at the Center for Human Values at Princeton University, told Vox, "It could be that by putting together a lot of different sources of emergency authority, the president could tap a lot of different funds and at least start." With the above powers to seize property and commodities, as well as regulate means of production and private enterprises, the President could re-direct government funding away from ongoing military projects to fund the border wall. Last Friday, Trump told reporters, "I can do it if I want."

Technically, he's right. If Trump's administration can prove that the border wall is a "military construction," then using military funding would fall under the U.S. code for "Reprogramming During National Emergencies," which states that a President may "apply the resources of the Department of the Army's civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense."

New York Post

2. Presidents can control the internet.

Seizure and control of transportation and communication includes controlling all internet traffic, restricting access to information deemed security risks. Today, that could mean "impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results."

Ars Technica

3. Presidents can deploy troops to your neighborhood—easily.

4. Presidents can confiscate your property.

5. Presidents can forcibly relocate Americans.

Among the most notorious and regretful instances of Presidents declaring states of emergency is Franklin D. Roosevelt's use in 1941, months after Pearl Harbour was attacked. The above powers endowed the President to forcibly relocate more than 110,000 Japanese-Americans to internment camps. To retell it simply, the President instituted martial law along the east coast, forcibly transported U.S. citizens to the camps, confiscated their property, and restricted them from leaving or communicating with the outside world. Meanwhile, Roosevelt deployed the U.S. military overseas to enter World War II. 30 years later, the NEA was designed to prevent sitting Presidents from abusing declarations of emergencies, but with its vague language, much of the law remains to be tested in court.

Equal Justice Initiative


In total, lack of clarity in the NEA gives Trump the legal grounds to argue for emergency powers over the country. However, legal experts, as well as passionate congressmen, have been outspoken about fighting against the president if he were to push that agenda. After all, congress reserves the right to overrule a president's declaration if they can pass a resolution to do so in both the House of Representatives and the Senate. However, the President would need to sign the resolution; otherwise, congress would need a second majority vote to override his veto.

President Trump is due to give a national address Tuesday night at 9PM. While he is not expected to declare a national emergency, he is expected to urge the American people that the southern border constitutes a "humanitarian and security crisis" that urgently needs to be addressed. To Trump, that means building a border wall, even if it means prolonging what is already one of the longest government shutdowns in history, or perhaps even abusing executive powers.


Meg Hanson is a Brooklyn-based writer, teacher, and jaywalker. Find Meg at her website and on Twitter @megsoyung.