Fortnite in hot water as famous saxophonist Lee Pellegrino sues over Phone it In emote

However, Pellegrino’s filing is somewhat different in that it’s not over copyright for his saxophone dance, but rather over misappropriation of likeness.

“There is no other saxophonist who moves like Leo P. and no doubt that Epic sought to exploit his likeness and signature movement for profit in Fortnite,” said lead counsel David L. Hecht of law firm Pierce Bainbridge Beck Price & Hecht LLP.

“While Fortnite has very recently started to work with talent like Marshmello and Weezer, implicitly acknowledging the importance of licensing intellectual property it wishes to use, it has continued to ignore the rights of a bevy of performers it blatantly copied, including Leo P.”

Although this is very much a US case, with no direct parallel in the UK, it is a reminder that the latest trends and technologies often throw up interesting legal questions for game developers.

To get a clearer picture on the matter and figure out whats what, we spoke with Nathanael Young, a Senior Associate at SA Law to get a clearer picture on the problems facing Epic Games and developers in general who might be looking to include more and more emotes in their games.

Here’s what he said:

In the UK, original dance routines can be protected by copyright as ‘dramatic works’.

They do not need to be registered but have to be recorded in some way. That used to be an obstacle to some performers – but as a video recording is enough, it would be unlikely to be a problem today. 

However, there have not been many cases about dance routines, so it is not very clear what is protected and what is not. 

One problem is deciding how long a dance routine has to be to be protected. A few steps or gestures are unlikely to count as a ‘dramatic work’, so dance moves in isolation are unlikely to be protected by copyright. 

Also, the shorter the move, the harder it is to show that it is original. Copyright normally belongs to the person that creates a new dramatic work, not to the person that made it popular.

Even if a dance routine is protected, not all copying will be a breach. Copyright infringement only happens when the whole or a substantial part of the copyright work has been taken.

There is nothing wrong with copying part of a longer dance routine, as long as that part is not ‘substantial’. That is a matter for the court to decide, and depends on how important the parts are that are copied, as well as how much copying has taken place.  

However, these issues are just one way the law will have to adapt to the times. Copyright law began when copying was a mechanical and often labour intensive process. In the digital age, copying is practically instant and cost-free. Trying to police it is not an easy task – and can easily end up penalising creators rather than copiers.  

In Europe, the new EU Copyright Directive is now inching closer to becoming law in all EU states. Despite protests from all angles – ranging from individual creators to global search engines – it is likely to have a big effect on internet copyright law in the UK, whatever happens with Brexit.

However, it is unlikely to be the final attempt to grapple with these issues. As the Fortnite cases show, the law is always a few moves behind.

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