An Infringement Inside an Infringement, How Fortnite Is Exposing Copyright Double Standards

Guest Author Haley MacLean explores the double standards of DMCA & Legal Takedowns, and how Fortnite is using its popularity to unfairly tip the scales in its own favor

This article was originally written for The Pause Button — a weekly gaming newsletter curating the best content in the games industry.

To receive this newsletter in your inbox weekly, consider subscribing if you haven’t already

A picture containing outdoor, person, road, building

Description automatically generated

Epic Sets The Stage

Epic Games has been a huge pioneer in finding new ways for video games to showcase various types of digital media within the game itself. In June, Epic held a series of Christopher Nolan ‘movie nights’ where players could join a Fortnite lobby and travel to a certain area of the in-game map to watch films like Inception, The Prestige, or Batman Begins in their entirety. An outdoor movie area with an in-game screen played the films during set times, and even offered the option for subtitles. 

Epic has also been offering live in-game music sets by popular artists through the game’s ‘Party Royale’ line-up including artists like Dillon Francis, Steve Aoki, and deadmau5. In April 2020 the game hosted a fully animated and choreographed concert featuring rapper Travis Scott, with EDM artist Marshmello doing a similar in-game concert the year before. In August, Epic continued to host new content within Fortnite including a four-hour programming block livestreaming ‘unconventional sports’ from ESPN 8: The Ocho.

As companies like Epic Games host highly enforced copyrighted material (concerts, movies, broadcasts) within their video games, it reveals new and unique problems when it comes to mixing marketing tools and the confusing world of copyright/legal concerns that many live streamers face. Statutorily speaking, almost every single video game livestream that makes its way onto Twitch is actually already infringing copyright. The job security of live streamers is in a state of total legal limbo, and no recent amendments to the US Copyright Act(Title 17 of the United States Code) or Digital Millennium Copyright Act (DMCA) have addressed copyright enforcement issues that are occurring within this ever-expanding digital space.

A Unique Symbiotic Relationship

For those unfamiliar with the workings of copyright law, video game developers/publishers unequivocally own the copyright to their video games. Rights that apply to video games under the US Copyright Act include the right of reproduction, distribution rights, display rights, and public performance rights under §106. The first two of those rights largely relate to the sale or control of copies of video games, while the latter two are more closely related to the processes of content distribution, wherein an owner of copyright may determine how they wish to see their work is shown or ‘performed’ in public.

The 2017 case of Epic Games, Inc v Mendes considered whether online gameplay constitutes a public performance. Epic was taking action against streamers who were creating ‘cheats’ that gave them unfair advantages over other players in Fortnite multiplayer lobbies. Videos with these cheats were shared on YouTube by the defendants, which in turn allowed Epic Games to bring forward a claim of copyright infringement under 17 U.S.C. §106(4) for public performance saying the defendants were “…displaying Fortnite publicly without Epic’s permission”.

Although this case was voluntarily dismissed before a decision was made, its circuitous route to resolution unearths questions about how this content might effect non-cheating creators. The ‘cheaters’ were streaming and posting videos of their actions in Fortnite, and the only difference between Epic becoming litigious with them as compared to anyone else is the fact that Epic simply didn’t like the content they were creating.

This herein lies the issue that video game livestreaming faces at the hands of the US Copyright Act and DMCA as they currently stand. Since almost every single person is infringing copyright when they stream a game in some regard, it is totally up to the discretion of the developer to decide if and when they want to bring forward a claim for infringement even if it’s for a potentially arbitrary reason. 

Having reproductions or public performances of works available online would undeniably be bad for business for the TV, film, and music industries. However, the video game industry has fostered a unique symbiotic relationship between copyright holders and infringers. Both parties have something to gain from the infringement, with game developers receiving free advertising from streamers, and streamers using copyright protected media to them to garner income and popularity online through streaming platforms like Twitch and YouTube.

The problem with this relationship though is the power rests in the hands of the game creators, but the risk is solely on the streamers. This inherent inequity is problematic, particularly when it’s the cornerstone of what’s expected to be a $70B industry by 2021. We haven’t many cases on the subject play out yet, but one could imagine potentially discriminatory situations emerging where developers could weaponize their copyright interests against certain groups of people based on their race, sexual orientation, etc. while allowing other groups of people to stream their game uninterrupted.

An Imbalanced Power Dynamic

The DMCA follows a notice-and-takedown procedure where online platforms (i.e. Twitch) are required to remove potentially infringing materials following a valid request from the copyright holder. This method is undeniably more in favor of the game developers, who hold the rights to the content, as opposed to the streamers themselves. On top of that, there are legal rules in place to ensure that intermediaries like Twitch are never held responsible for infringement that occurs on their platforms by their users.

This creates a self-governing negative space in the law that survives solely on discretion. As long as game developer’s best interests are maintained with free advertising, streamers are allowed to exist within this legal vacuum. However, every content creator will continue to have this (technically legal) threat of a DMCA takedown looming over their heads. Since most developers either explicitly state or imply through inaction that an act infringement of copyright which will not be acted upon, this essentially means that game developers can pick and chose their own sets of rights, and self-govern their content without assuming any of the risk.

A Copyright Infringement Within a Copyright Infringement

As established, the current state of video game livestreaming is already ambiguous at best. So when companies like Epic begin adding a new layer of historically enforced copyrighted works (like movies and music) within the games themselves, the legal negative space of the livestreaming industry becomes even more opaque. One could think of it as two layers of copyright infringement: the first, where the copyright owners permits infringement (gameplay streaming), and the second where you the content inside the game (like a film) will almost certainly receive a DMCA takedown.

Think of the plot behind Inception (as seen in Fortnite), instead of dreams it’s copyright infringement. Both live streaming a game and showing a movie are infringements, but the only way to enforce the violation of the film’s copyright is to infringe on the game itself, which developers don’t seem to want to enforce. That’s like Leonardo Dicaprio’s character only getting in trouble for the damage he caused in the inner-most dream, and not all subconscious he took along the way to get there.

To make matter worse, the suggestions from Epic on how streamers can avoid copyright strikes during Fortnite in-game events can differ from straightforward to vague. For the ESPN 8; The Ocho broadcast, Epic advises to simply, “[r]efer to your channel’s platform policies for tips on how to avoid copyright strikes.” Whereas for the Christopher Nolan films. Epic stated to completely avoid livestreaming any aspect of the event altogether saying, “just like any theatre - there's no broadcasting or recording these films during the show…any streams or videos of these films will be subject to anti-piracy and DMCA regulations”. This just shows how delicate that symbiotic relationship is between streamers and copyright owners. As soon as more heavily enforced media (a film) is being publicly displayed within Fortnite, the game is comparable to a theatre and will be treated as such according to the DMCA. But when it’s just gameplay, which is also theoretically protected under the DMCA, all the rules disappear so game developers can continue to indulge in free advertising.

The showing of full movies in Fortnite is an easy example to present this double-standard, because even someone who is not familiar with copyright law could understand that just because a film is within a video game, does not mean any person is now allowed to stream that film in its entirety. In this example, a streamer could just avoid the event and continue to steam gameplay footage most likely without issue. However, what happens in situations where highly enforced copyrighted material is more intertwined with gameplay? What is a live streamer supposed to do in a situation where they want to create content, but can’t avoid one of these precarious legal situations.

For Example, let’s look at game series like Fallout or Grand Theft Auto, which both feature a ton of copyrighted music. Some of this music is presented to the player in a way that the streamer could easily avoid. However, some copyrighted music plays directly within cutscenes or gameplay set-pieces, and a streamer would have to pre-emptively plan for such occurrences or risk losing their stream to a DMCA takedown. Even more tricky is instances like in Fallout 4 where you can turn off radio mode, but in-game locations will still have music playing out of in-game radios around the world. One can see how it can become very tricky to avoid infringement of traditionally enforced works within this space of general non-enforcement. To lower the risk, some streamers have developed mods that automatically turn off radio music or made tools for their streams that allow them to cut out of scene with copyrighted music or play other music overtop of it before Twitch can detect infringement. 

Moving Forward

Some streamers might try and argue that their streams could be considered fair use under §107 of the US Copyright Act, wherein copyright infringement is permitted if for a limited and “transformative” purpose, such as to criticize, comment upon, or parody a protected work. However, there is a lack of legal precedent to affirm this claim and it’s often forgotten that fair use is a defense to copyright infringement. Meaning that by nature, fair use as a defense would be evaluated on a case by case basis. A main reason why the courts have not thoroughly determined if a livestream could fall under fair use as per the Copyright Act is precisely because streamers would have to assume financial responsibility to take the issue to court. Often when cases with similar facts commence with the preliminary stages of litigation, they are settled before the issue can even see a court room for financial reasons.

Copyright law within the United States, needs to be updated to reflect this extremely unique digital space and the myriad of copyright issues it has developed. The lack of enforcement within this space is allowing game developers to sit on their rights and only enforce them for their own personal (and potentially arbitrary) reasons. It’s unfair that streamers have to navigate such a precarious space where enforced works are becoming more and more intertwined with permittable gameplay. To make the law clearer in this space would even mean companies like Epic could try even more creative ways to deliver digital media within their video games without fear that they would be opening the legal floodgates for their users.

A better balance needs to be established between copyright holders and video game live streamers not just for clarity, but to maintain a relatively new billion-dollar industry. Copyright holders could continue to utilize free advertising, but with better protections in place for streamers who are already assuming all of the risk. Streamers would finally be able to focus solely on creating content without keeping track of all the growing Inception-esque ‘infringement within an infringement’ issues, and never have to check the spinning top to see if they are lost inside an infringement case or free from DMCA reality.

Haley MacLean (@haleyfax) is a third-year law student with a huge passion for intellectual property and technology law. Prior to law school, she worked as a journalist in the video game industry for five years and continues to cover games while in school for several publications. Upon graduation, she plans to work with game developers, digital media content creators, and other tech-based companies in managing their legal needs. You can find her on Twitter @haleyfax