Copyright Law Update: Epic Games Sued by Rapper 2 Milly's for Turning one of his Dances into a Fortnite Emote

While the basics of Copyright Law are over a century old, the law evolves with the times. Unless you have been living in a cave for the few years, you have heard of Fortnite and its popularity, the gaming craze that has captured the imaginations of teens and older people alike. Consider this profile of the game in The New Yorker, one of the more genteel literary publications that has survived the internet age.

Epic Games, which is the company that produces Fortnite was sued yesterday in Federal Court in California by rapper 2 Milly for allegedly reproducing his likeness and dance moves in the game without a license.

Read More

Copyright Law Update: the EU Copyright Directive Roils the Internet

In Europe, the EU’s Legal Affairs Committee (JURI) voted in favor of several new amendments to the Copyright Directive, which was originally adopted by European Parliament in 2001.  The amendments contain, among other things, two provisions entitled Article 11 and Article 13, respectively.  

Article 11 would essentially impose a "link tax" - yes, you read that right -  that would require  online platforms like Facebook and Google to buy licenses from media companies before linking to their stories.

Article 13 would require large platforms like Facebook and Reddit to introduce filters to flag copyrighted material that is uploaded by their users.  The companies would have to prevent such content from being published.  Currently in the EU, internets sites observe a notice and take down regime.  In other words, if a creator notices his or her copyrighted content is being posted without permission, then the internet site is required to take the infringing content down upon notice from the creator/rights holder.  This is similar to the practice in the United States. 

ANALYSIS: The European Parliament has to vote on JURI recommendation.  Currently, there is no date set for that vote.  These amendments have big implications for any business that hosts third party content and creators who are users of such sites.  While these rules have no immediate applicability in the United States, this issue is worth watching. 

Copyright Law Update: The "Monkey Selfie" Case Ends in the 9th Circuit

In order to understand the impact of the 9th Circuit's recent ruling in Naruto v. Slater, we have to quickly survey the history of the case.  David Slater is a photographer from the UK.  In 2011, Slater was in Indonesian jungle photographing a group of macaques.  Slater sets up a camera in a clearing to work without his presence.  

Subsequently, a macaque approaches the camera, starts to handle the camera, and in so doing presses the shutter button down, resulting in a series of images which immediately became known as the "monkey selfies".  

Slater takes those images, includes them in a book of his collected work, and begins to sell the book independently. 

That's when PETA alleged that Slater was infringing on - wait for it - the monkey's copyright in the "monkey selfie" photographs included in Slater's published collection. 

Read More

When Video Game Makers Sue Users for Broadcasting Cheat Codes

The video gaming industry is a massive, multi billion dollar business in the United States.  It is also a business that is almost totally intangible (with the exception of merchandise sales that carry the branding of individual companies or game titles.

Computer code is copyrightable, and before any major titles are released, that software is in fact protected by trademarks and/or copyrights.  

As one would expect, the video game developers protect their intellectual property through the use of copyrights, patents, trademarks, all of which are enforceable.  If they can't protect their IP, then they don't have a product to sell. 

There are a couple of new concepts at play in this legal update, but the basis for litigation described below is traditional copyright law. 

If you have a child or young person in your life who is under the age of 18, you know that one of the most widely watched type of YouTube videos are gaming videos, where a video gamer has recorded (or has livestreamed) his or her gameplay, and provided commentary of what he or she is doing. The actual online environment of the game is broadcast via YouTube.  

One thing that gamers tend to publish on YouTube are cheat codes for certain video games.  What is a cheat code?  A cheat code is just what it sounds like they are: pieces of software that can be downloaded that give the cheat code user special powers or abilities within the game that other players do not have.  With the rise of multiplayer games, there is an expectation in the game player community that the playing field (no matter how virtual) is level, and that all players are operating within the same online environment without unfair advantage.  More on that later. 

It's not surprising then that a company like Epic Games would file suit in federal court alleging a copyright infringement claim, among other claims, against an individual who admitted to using cheat codes on his YouTube channel.  Why?  The plaintiff alleges that the defendant violated Epic's End User Licensing Agreement ("EULA") by using and broadcasting the cheat and refusing to take down the YouTube video, among other copyright infringement claims.  It is important to note two things: 1) the original game was free, and apparently there was no consideration paid for the initial game, and 2) the defendant is a minor. 

There are many questions before the court in this case.  Is a cheat code a violation of copyright law?  Is an EULA enforceable against a minor?  Did the plaintiff violate the defendant's privacy by publishing his name?

While this case is in the beginning stages, there will be additional updates as it progresses. 

LIVE After Death, continued: Governor Tarkin Lives

Previously, I've written about the digital "resurrection" of Tupac Shakur, Ronnie James Dio and others.  This week marked a giant leap forward (or backward depending on your worldview) in that trend.  The late Peter Cushing, who among other famous roles played the iconic Governor Tarkin in Star Wars Episode IV: A New Hope, turns in a new "performance" 22 years after his death in the newly released Disney film, Rogue One

How is this possible?  Digital manipulation of Cushing's likeness. This is the latest in a line of developments where deceased musicians have "appeared" by hologram in concert, actors from bygone eras are inserted into TV commercials for vacuum cleaners and other products. 

With the release of Rogue One, it is indeed a different paradigm now in film, tv and video content. We are rapidly approaching an era where people's likenesses can be resurrected via CGI after death to create new "performances" in future years that we can't now contemplate. What is a live performance really mean in this context?

Read More