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When does an homage become a rip-off?

Legal or not, Epic Games' uncompensated copying of other creators' dances in Fortnite has called the company's morality into question

I'm not sure whether Epic Games has an internal target for the number of minor public figures they piss off each week, but if this is one of their KPIs they've certainly been knocking it out of the park in recent months.

A string of performers, dancers and actors have expressed varying degrees of annoyance at the inclusion of their signature dance moves as emotes in the studio's enormously popular Fortnite; it particularly rankles that some of them are seeing dances they originated being sold as cosmetic items for the game without consultation or permission, much less any share of the profits finding its way back to the original creator.

The legal situation here isn't entirely clear, but the broad consensus is that Epic isn't actually doing anything wrong in terms of the letter of the law; dances and choreography are generally not something that are protected by copyright. Morally, that certainly feels like a double standard - the person who created an original dance move can't copyright it, but you can be damned sure Epic wouldn't hesitate to slap a cease and desist on anyone who started feely distributing the animation files it created that merely replicate that dance in digital form.

But the law is a technical instrument, not a moral one. It seems likely that a legal challenge would find Epic technically in the right on this issue.

"The person who created an original dance move can't copyright it, but you can be damned sure Epic wouldn't hesitate to slap a cease and desist on anyone who shared the animation files"

All the same, while the law may be a technical instrument, the success of a game or the public image of a studio are grounded in emotion and perception - and "ripping off smaller, less influential creators" is not particularly great look this season. The vast majority of Fortnite's fans, of course, won't even hear about these issues, let alone allow themselves to be concerned by them; but treating creators in this way is the kind of behaviour that sticks to a studio's image and can be hard to remove. The damage done by a negative image or a reputation for corporate bad behaviour is difficult to quantify but nonetheless real - from turning off some consumers to gumming up the works of everything from PR outreach to hiring processes.

There is, however, a broader cultural issue in play here; I don't think that Fortnite's developers actually had some kind of lawful-evil alignment meeting where they decided to screw over a bunch of dancers and performers to make cash out of cosmetic emote sales. Rather, I suspect that at the outset at least, there was no particular sense that what they were doing was problematic.

This stems in part from something that goes a long way beyond video games development culture, namely the sense that many people have that the specialisms of other people - especially creatives - are simple or easy; this is what leads to the oft-derided insistence that artists, designers, musicians or other such creative professionals should be willing to do their work for little compensation or for free. Price quotes or invoices being met with incredulous statements like "it's just a drawing!", "it's just a poster design!" or "it's just a short jingle!" are the unfortunate background noise to the careers of many freelancers in those fields (and for writers, translators and pretty much anyone else who might earn a freelance living). They speak to a broader culture of undervaluing this kind of work and assuming that - although the person making the statement clearly couldn't actually do the work themselves - it was simple, unproblematic work unworthy of significant compensation. After all, "it's just a short dance!"

The other cultural aspect of what's happening here, however, is more closely tied to video games; it's the fact that video games have a very, very long history of 'homages' to other forms of mainstream culture - especially movies, but also to pop culture of all kinds.

"Legal rights or wrongs aside, when Epic lifts dances or any other creative element from someone else, it's corporate bullying, not a homage"

Homages, of course, are common to any form of media, but the status of video games as something of an underdog and an outsider medium compared to the big, commercially mainstream worlds of movies, TV and music meant that those references often went far beyond the realms of 'homage' and ended up just being wholesale copying of someone else's work. Subtle references and easter eggs are one thing, of course - they're clever, fun and respectful ways to nod to inspirations and beloved creations.

To understand, however, how the creators of a multi-billion-dollar global hit game could find it morally unobjectionable to simply include something created by a less powerful and influential artist in their work, you have to consider that game developers spent decades straight-up dropping catchphrases, quotes, creature designs (how many '90s games essentially ripped off Giger's alien?), weapons, and even music or entire scenarios taken directly from more mainstream media into their games.

Of course as video games have become more commercially and culturally mainstream this kind of activity has declined - and even in its heyday, most of what was done was technically on the right side of the "fair use" line, even if some of it would definitely raise both eyebrows and lawsuits if it were to happen today - but for decades, video game creators saw themselves as scrappy underdogs who could play fast and loose with the cultural creations of the big, influential giants of Hollywood and other media bastions. Who could object to a humble video game taking a little something from the movies or music that inspired its creators? Even when such things crossed a legal line, they generally got away with it because, well, video games truly were the outsider and underdog so what they did largely went under the radar.

It's self-evident that the world has changed. Fortnite is a bigger and more successful piece of commercial entertainment than any of the things its dances pay 'homage' to; its developers may still be making judgements based on some romantic notion of being a scrappy underdog or outsider, but this is a game that will make more money this year than any Hollywood movie or big-budget TV show. A game like Fortnite isn't the underdog; legal rights or wrongs aside, when it lifts dances or any other creative element from someone else's work, it's an act of corporate bullying, not of homage.

Of course there's still plenty of scope for game creators to be inspired by the work of others and to cleverly reference those inspirations in their own work - that's in some respects the very essence of creativity - but the success of the medium brings responsibilities with it. Those responsibilities include making sure that calling out sources of inspiration doesn't cross a line into rip-off territory, but also, and perhaps more importantly, to remember that a big game is now a cultural juggernaut that could seriously trample over the careers and livelihoods of the creators it claims to 'honour' with an in-game reference or homage.

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Latest comments (8)

Neil Young Programmer, Rebellion Developments22 days ago
dances and choreography are generally not something that are protected by copyright
It may vary by jurisdiction, but choreography is protected in both UK and US copyright law - the difference is that what's being objected to here isn't entire dances, but single moves, which either aren't copyrightable, or at least lack precedent for it.

Edited 1 times. Last edit by Neil Young on 23rd November 2018 11:43am

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Peter Lewin22 days ago
@Neil Young: Hi Neil - I've actually just written a blog post all about the legalities of this from UK/US perspectives, thought you might find it interesting =)

https://legalgamer.weebly.com/blog/fortnite-creator-facing-potential-lawsuit-over-stolen-dance-moves
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Edward Buffery Head of LQA (UK), Testronic22 days ago
I'm probably biased due to being a Blizzard fanboi, but I think a good example of this being done in a more respectful way was when Blizzard incorporated Napoleon Dynamite's dance sequence into World of Warcraft's male blood elf /dance animation. The choreography was from a film rather than an individual artist, it wasn't something you could purchase, and it was't promoted in any way so felt more like an Easter egg than an appropriation. Fortnite are taking it to a whole other level, and should know better, legal or not.
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Klaus Preisinger Freelance Writing 22 days ago
'We need microtransactions to be profitable'
-> rips off the latest dance and puts it into microtransactions

current legality might not matter, once the music industry starts thinking that this was their revenue, not the revenue of game companies. Especially given the fact how game companies point out their dependence on MTX. The music industry got the lobby, they got the motivation and they do have laws about sampling to build upon.
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I doubt Epic is "the bad guy" here - even morally. Who should Epic be paying for a "Moonwalk", MJJ or Marcel Marceau ? The copyright law isn't just a technicality, it is used to identify "what belongs to whom".
If I (company) can't verify who owns the rights to something I want to use, who do I pay for rights ?
If Average Joe claims that's his dance, how do I verify ? How many Average Joes will come forward claiming ownership ?
And, if dance moves can't be copyrighted, there will probably be a good reason for that.
(Pay royalties to the first person that waved a "goodbye" for the time being ?! :))
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Daniel Trezub QA Analyst, Ludia21 days ago
@Neil Young: they are not single moves, like the dab or whatever. They are a sequence of moves, several seconds long, and they are easily recognizable as copies from somewhere else. Check out the video in the article.
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Zidaya Zenovka Blogger, Writer, freelance artist. 21 days ago
Back in the day this would be known as 'biting' and Epic would be considered low class for doing it. It might not get them in legal trouble but it does lose them some respect points in my eyes.
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Erin Anderson Sr. Technical Developer Relations Manager, EA19 days ago
I am guessing that this is a problem of visibility, and Fortnite just has more eyes on it, but this is hardly a new phenomenon:

https://www.youtube.com/watch?v=VuUIMraKbC8

Somehow I doubt that any of those artists got any money or recognition from Bungie, either. It's a sticky situation for things that are included as part of the games themselves. (The one that Epic is literally selling as an MTX item is just shady; very bad form.)
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