I’m going to be honest – I don’t get Fortnite.
It feels like one of those games which burns brightly for half as long; it’s massive now, but that sheen will wear off and eventually we’ll all move onto the next “Big Thing” – and the Games Industry will turn on a dime and rush to capitalise on a new trend and a new craze in the hopes that they can get just a small piece of that pie. We’ve seen this with MMORPG’s, we’ve seen it with MOBA titles and Battle Royale is just the latest “new-ish” genre to see a massive growth that will eventually lead to a painful contraction of fortunes.
Sustainability isn’t as important in the frenzied rush for profit. The Games Industry will mine a seam dry before admitting as much.
That said, Fortnite is in the news for a different reason – Epic Games are facing multiple lawsuits now for “Copyright Infringement”. The dance emotes in the game, which are often paid for, showcase many old and new dance crazes and meme-driven moves and some of the originators of these dances are less than impressed. It has become so saturated with these dances that there are a growing number of people who are either pursuing or considering active litigation against Epic Games and Fortnite.
This all seems silly, of course it does. There isn’t much in legal terms to copyright “dance moves” in such a manner – choreography can be copyrighted, but in some cases that’s a stretch. And equally, the cost of litigation with no active or considered precedent could backfire on the litigating parties, setting a free-for-all situation where any publicly-available manoeuvre could be considered open for fair use. That said, maybe the litigating parties simply want a settlement.
Because at the core of all of this is the reality that Epic Games… hasn’t even been asking permission for any of this.
I’m reminded somewhat of Weird Al Yankovich in this instance. The man is a legend so you don’t need me to even discuss his work here, it’s easy to get lost in his YouTube discography for hours at a time. However, I recall reading that despite the idea that Weird Al probably could get away with Fair Use/Parody clauses to protect his work – he doesn’t do that. It’s a tricky case and it would only take one slip-up to effectively damage his career. (Protip Al; that Weezer video was not a good idea. Sorry…)
Instead, he asks the original artists for their permission and blessing. And on the whole, the vast majority are fully on-board. First up, he’s funny and he always makes the best of even the most terrible songs. Secondly – to be parodied by Weird Al today is a sure-sign you have officially made it as one of the biggest stars in the music world. It’s considered by many to be an honour to have him use your song as the basis of a parody. Plus it’s Weird Al; few have the cold heart to say no to him. Those that do get pilloried elsewhere. It’s just not the done thing.
Going through all of that seems like a lot of work for what is often a relatively cheap joke. But not only is it legally sound – getting the actual blessing of those original artists helps stave off potential litigation – but it’s also just… well… the morally and ethically decent thing to do. Weird Al isn’t a vicious or angsty comedian; he’s a decent guy doing stuff he loves to do.
So I was thinking; why didn’t Epic just… you know… ask for permission?
I can’t imagine anyone would have said “no” to being part of one of the biggest games on the market. It could have been a point of pride, even, that they got their dances to feature in such a big video game craze. All it would have taken were a few letters and a tiny bit of patience, to hear the “Yes” or “No” required.
But instead, they do appear to have… ahem, reproduced the dances without asking, and are selling them to users individually. That puts Epic on much shakier legal ground; borrowing or utilising dance moves from the real world isn’t new – World of Warcraft dances are all based on real dances (Orc Males are MC Hammer, Blood Elf Females do Britney Spears, Pandaren Males do “Ev’ry Day I’m Shufflin'” and so on), but they’re a tiny part of the whole. They aren’t being sold separately, they’re just… a speck on a vast sea of content and animation.
So I don’t know how this will go in a courtroom, if it even gets that far.
However, there’s an important lesson to be learned here – Pay Now or Pay Later. Forgiveness is a debt that has to be paid, and that – like anything you take on credit – comes with interest. What you end up paying at the end of a lawsuit, or even in a settlement, could be vastly greater than what you might have paid if you had the common sense to just politely ask for permission in the first place.
It’s not that manners cost nothing – it’s that they often get you perks in the process. A “please” and a “thank-you” can work wonders on some people, if not most people. It’s such a small thing, such a tiny detail, but it can soften people up and get you things you never realised you could get (last time I asked politely for a pot of tea at a cafe in Plymouth, I got a freakin’ muffin thrown in for my politeness! Go manners!).
Pragmatism is often a big thing in legal matters; can you avoid a potential legal nightmare and extended litigation with a few simple and inexpensive steps at the beginning? I mean, I’ve set up my Death Plan. I’m saving my siblings a massive bill in legal fees fighting my family by making it expressly clear before I’m gone what my wishes are. A tiny payment now – but a massive saving for them down the road. The family COULD fight it, of course, but they’d have to explain why it’s unreasonable and considering my plan has been built around affordability and my sense of humour, they’d have to argue for a vastly more expensive option I’ve expressly stated I have no interest in. I certainly don’t want religion intruding on my death.
Unless that religion is Cthulhu.
I wonder, fundamentally, if Epic Games are sitting around thinking if it might have been a better idea to have asked permission from the start – because not only is the legal issue going to be a rough fight in legally vague boundaries, but if they end up being forced to pay in advance for dance emotes from people – their prices are likely to be much higher, again largely to echo the increased settlement costs that Epic could be made to pay out.
This just seems like something that could have been avoided entirely with a little planning and a small helping of good manners. But there’s that pesky Hindsight again. Always 20/20…