“For a bunch of hairless apes, we’ve actually managed to invent some pretty incredible things”
—Ernest Cline, Ready Player One
It’s an incredible time to be alive. The Digital Age has helped us reached levels of efficiency and connectivity that were unimaginable just a few decades ago. In his award-winning novel, Ready Player One, Ernest Cline, paints a picture of a not-so distant future where people spend the majority of their time experiencing life in the “Oasis,” a realistic virtual world where users interact with one another in amazing virtual environments that mimic reality in many ways, but where the rules of physics and nature are malleable, allowing the game publisher to create wildly entertaining games where virtually anything can happen. While we may not have the Oasis yet, today’s video games are rapidly evolving into similar immersive social platforms where users can play, compete and express themselves in settings that seem to be inevitably headed towards something that looks increasingly like Cline’s Oasis. One way that video game makers are able to make game backdrops more realistic and thus enrich the overall user experience is to incorporate real-world ideas and content to more closely emulate reality in the game. In response, an increasing number of intellectual property owners who object when their “property” gets incorporated into video games are bringing lawsuits that will help define the boundaries of intellectual property law in this new arena.
In what is only the latest example of this type of dispute, Take-Two Interactive, publisher of the popular Red Dead Redemption 2 video game, was recently the recipient of a cease-and-desist letter from Pinkerton Consulting & Investigations, which argued that Take-Two had infringed on its registered trademark in the Pinkerton brand. Red Dead Redemption 2 is a western-themed video game set in 1899. In the game, there are two fictitious characters who portray agents from the famous Pinkerton detective agency. Pinkerton’s cease-and-desist letter took the position that including the fictional Pinkerton characters “creates the false impression that the game originates from Pinkerton or that Pinkerton is somehow connected to or associated with Rockstar Games [owned by Take-Two] in a way that deceives customers or causes confusion or mistake.” Pinkerton demanded royalties for the use of their trademark. Take-Two wasted no time in responding, filing a lawsuit seeking a declaratory judgement that use of the Pinkerton trademark in the game is a protected act under the First Amendment and constitutes a nominative fair use of Pinkerton’s trademark. Take-Two’s suit argued that “historical fiction—television, movies, plays, books, and games—would suffer greatly if trademark claims like Defendants’ could even possibly succeed.” Apparently, Take-Two’s arguments made an impression on Pinkerton. In April 2019, Take-Two withdrew the suit and issued this statement:
“Take-Two can confirm that the present-day Pinkerton Consulting & Investigation company has withdrawn its claims against Red Dead Redemption 2, and Take-Two will not continue legal action against Pinkerton. Red Dead Redemption 2 is a work of fiction set in the late 1800s that references historical entities active during that time.”
Fortnite, published by Epic Games, is another popular video game that has been the subject of a similar complaint. Fortnite is a free-to-play first-person shooter game that utilizes a “Battle Royale” format. In a typical Fortnite session, one-hundred players fight it out until there is only one player standing. While there is no charge to download the game or to play, users can purchase downloadable content to personalize their avatars with costumes or other custom attributes. Included in these downloadable customizations are dance moves. Epic offers Fortnite players the ability to equip their avatars with the ability to mimic a number of classic dances, many of which are based on classic real-world dances. While players apparently love this cool game feature, a number of lawsuits have been filed by plaintiffs claiming they had first created the dance moves and therefore own the resulting copyrights. One of the more notable lawsuits was brought by Alfonso Ribeiro, the actor who played Carlton in the 1990s sitcom The Fresh Prince of Bel-Air. On the show, Carlton became known for a cheesy, arm-swinging dance move that Ribeiro himself created and which became known popularly as “The Carlton.” Ribeiro filed suit against Epic in December 2018, claiming that Epic infringed Ribeiro’s pending copyright in the dance move. Under the copyright statute, choreographic works are eligible for protection, but it is not entirely clear what qualifies as a choreographic work. Typically, in order to deem something a choreographic work, the U.S. Copyright Office looks for a series of dance movements or patterns that are “organized into an integrated, coherent, and expressive compositional whole.” In March 2019, the Copyright Office determined that Ribeiro’s dance was not sufficiently developed to constitute a choreographic work eligible for protection, deeming that the dance steps in question were only a “simple routine.” As a result of this decision, Ribeiro voluntarily dropped his lawsuit against Epic.
These are but the latest in a series of similar legal skirmishes brought by plaintiffs who believe their intellectual property rights have been violated by game publishers, and they certainly will not be not the last. As these cases make their way through the legal system, the resulting precedents will have an important impact on how “real” video game publishers can get when crafting their virtual environments.