Sometimes even doing everything right gets something wrong. When it comes to video game development, this statement is right on point. It should come as no surprise to those in the video game development and publishing community that a host of considerations must be weighed when developing a video game. From the technical aspects of the program (such as graphics rendering and online multi-user handling) to the story line and gaming construct, developing and publishing a video game in this day and age is no easy task. What is becoming even more important, however, is the importance of the online gaming community to the ongoing success of any gaming franchise. Gone are the days of buying a video game and simply playing it to its conclusion — we are in the age of massively multiplayer online (or “MMO”) gaming platforms, and online gamers that record and monetize their online exploits. It is at this intersection of video gaming and entertainment that some interesting (and unintended) intellectual property issues arise, and like a good MMO game, they are getting some attention.
Video games have come a long way in just the past 10 years. Instead of just interacting with the game and playing against another friend or three present with you at the console, MMO gaming platforms allow large numbers of individual gamers worldwide to compete together in online gameplay from the comfort of a chair at home (or a mobile device for that matter). One of the better-known gaming platforms is Fortnite by Epic Games — an MMO platform that has players glide into a defined world and fight each other in playful combat using characters that they can clothe and customize through its online “shop.” One of the customizations includes the ability to exercise an “emote” — a series of dance moves usually accompanied by music that permits the players to express themselves and their feelings during gameplay. From the somewhat better known (like the “Electric Shuffle”) to the more obscure (“Hootenanny,” anyone?), there are a host of different ones to choose from to reflect the personality (and moods) of the player. As fun and expressive as they may be, the incorporation of such emotes and music have unlocked some issues that can cause some unintended missteps for the video game developer if they are not careful.
Recently, the “Never Gonna” emote was added to Fortnite. For those not in the know, this emote is based upon the 1987 hit Rick Astley song “Never Gonna Give You Up.” The emote basically plays a portion of the song, with the player mimicking the dance moves performed by Rick Astley in his original music video for the song. It also capitalizes on a popular online prank using a disguised hyperlink to the music video in a type of “bait and switch” from the purported content after the click, lovingly referred to as “rickrolling.” This is where things get problematic. First, the incorporation of dance moves comes with some risk — as I have written here a year ago, some artists have sued Epic Games for incorporating their signature dance moves (such as Chance the Rapper and Alfonso Ribiero and his “Carlton” dance). Some of these combinations of movements may (or may not) qualify for copyright protection, so a proper vetting prior to incorporation is prudent. To the extent such personalities have actually registered the copyrights to their dance moves before asserting copyright infringement (courtesy the SCOTUS holding in the Fourth Estate case), any videogame developer seeking to incorporate such dance moves needs to consider an appropriate license prior to doing so. Of course, the same goes for any associated music; however, this is where the law of unintended consequences comes into play.
The problem with emotes and their associate music is best illustrated by looking at the “Never Gonna” emote. Epic Games stepped up their game by licensing this content for incorporation into Fortnite, but in doing so they did not realize that they would be creating potential problems for their players. How? Many online gamers stream their playing on other platforms (such as YouTube and Twitch). Some of these players have developed significant followings of subscribers who enjoy watching this content, which these players are able to monetize through the platforms depending upon the number of subscribers. Therein lies the rub — the license provided to Fortnite covers the public display and performance within the MMO gaming platform, but the streaming of such content (or recording of the gameplay for views on these platforms) rests outside the scope of these licenses. As a result, YouTube’s automated Content ID tool, used to identify potentially infringing content, is flagging such videos, and the content creators are losing the ad revenue generated from such content. In sum, Fortnite’s licensed incorporation of the emote has resulted in potentially unlicensed use by the very gamers who help propagate the popularity of the online MMO gaming platform.
So what is the solution? In the short term, it seems that Fortnite has created a patch that will permit such gamers (a.k.a. content creators) “playing on PC [to] mute licensed emote audio.” Obviously, that “fix” is helpful, but incomplete. Ultimately, the fix will be to account for such secondary streaming and recorded video in any future licensing. YouTube’s Content ID tool will then need to account for such licensing accordingly.
The lesson here is that the videogame developer did not account for the essential part of its gaming community — its creator base. Fortnite’s popularity is due in no small part to the millions of subscribers who view streaming and recorded gameplay by such content creators. Any video gaming developer seeking to incorporate choreography or music should take heed of Fortnite’s experience (and its lead) — avoid stepping on the toes of both licensors and content creators alike by taking the appropriate steps to ensure that the appropriate intellectual property rights are licensed. Such steps will have the respective gaming communities dancing to the right tunes and contributing to a healthy bottom line for the company.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.