eSports and Copyright between choreographies and UGC

by Roberto Valenti and Tommaso Fia

There are a number of copyright issues related to the choreography of an eSports game. In these days the first (and most important) regards the protection of choreographic elements (i.e. a dance) which could appear in videogames. In Europe and in the USA, a choreographic work is protected by copyright. This is why an extended series of dances moves that is original to its creator can be protected by copyright. The above explains the law suits recently filed in the USA at the end of 2018 by several individuals in connection with famous Fortnite videogame.

If you are not familiar with Fortnite, players can buy (or earn) emotes, short avatar animations who can replicate generic acrobatic moves and dances. The Fortnite Loser Dance (so called L Dance) become famous thanks to the French soccer player Griezmann, who used this theme after scoring in the last World Cup 2018 final against Croatia.

Now, as mentioned there are several individuals in the USA who claim they have invented dances moves (including the L dance), and therefore sued for copyright infringement.

Under copyright law, there are at least two relevant issues with regard to the protection of choreographic elements.

The first is originality, i.e. that work shall be the expression of the personality of the author and shall not be copied from other works. In this regard, the dance moves shall be complicated enough, and differentiated enough from social dance steps and simple routines to get copyright protection.

The second is the fixation requirement, i.e. a dance is not protected until it is recorded in a tangible form.

Copyright issues in videogames, in particular online multi-user ones, are not limited to dance moves.

On a different matter, many people talk about “User Generated Content” (“UGC“), but they usually do not know exactly what it means. Indeed, it refers to a broad range of applications, such as social media, news, videogames, TV programs, and its meaning may change depending on the effective field involved. The common link in these applications is that UGC encompasses any content, such as pictures, videos, text, and audio, that have been created and proactively posted by users.

In some videogames, unlike other types of creative works, users are nudged to express their own creativity. For instance, some developers design interfaces that allow players to elaborate a set of “in-game works”: e.g., avatars, narratives, in-game objects, new environments, and animation sequences.

The more players are given the opportunity to create and interact, the more the UGC will likely to be considered a creative work protectable under copyright law, probably being encompassed amongst the so-called derivative works. Nonetheless, license agreements of videogames, by regulating the contractual relation between the players-UGC authors, and the right-holders of the videogames, always allocate all (or most of) the intellectual property rights over the videogames to the publishers and the developers. This also because a fragmentation of the rights of all players would entail problems when their creations are exploited centrally.

These problems certainly make the existing legal framework rather obsolete, since the existing copyright provisions hardly suit to these new contexts. For this reason, regulators should take into account this matter and seriously consider the creation of a sui generis right for players intending to publish and exploit their UGC.