Epic Games, Inc. v. Lucas et al
United States District Court for the Eastern District of North Carolina
Civil Docket Number: 5:18-cv-00484-BO

Epic Games is suing more individuals for cheating in Fortnite, this time the defendants are two streamers, Brandon Lucas and Colton Conter. The complaint alleges that the defendants’ use of cheat tools constitutes copyright infringements and is a breach of contract. Epic asserts that the defendants created an unauthorized derivative work by using the cheat tools. Also, the complaint alleges the defendant’s YouTube videos showing them using the cheat tools in the game constitutes an unauthorized public performance. Beyond just directly infringing the Fortnite copyright, Epic claims the defendants have also committed contributory infringement by selling the cheat tools. Along with the copyright claims, Epic is also asserting a breach of contract claim by arguing the defendants violated the End User License Agreement by using the cheat tools.

The cheat tools work by injecting new code into Fortnite during execution which modifies the game. For example, a user could insert code that causes the character to be invincible. Epic alleges that this modified version of Fortnite constitutes a derivative work. Generally, a derivative work is one that “incorporates a protected work in some concrete or permanent ‘form.’” Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 967 (9th Cir. 1992). It could be argued that injecting code into the game does not incorporate the protected work in a permanent form because the changes are only temporarily altering the game during execution. However, since Lewis Galoob Toys, some courts have ruled that creating a cheat tool for use with a video game counts as a derivative work.

Besides the right to prepare derivatives, the only other exclusive right Epic claims the Defendants infringed is the right of public performance. The Defendants are streamers who often post videos of themselves playing Fortnite. In some videos, the Defendants use the cheat tools while they play Fortnite. According to the complaint, the YouTube videos infringe on Epic’s exclusive right to publically perform Fortnite. Video games are considered an audiovisual work so to perform a video game means to show its images in any sequence. While it might seem obvious that videos on YouTube would constitute a performance, earlier this year, in a default judgment, the Northern District of California questioned what it means to publically perform a video game. The court declined to answer the question because it was only a default judgment and the parties had not adequately briefed the issue. For more in-depth analysis click here to read our earlier post. But at least that one court is suspicious of such a claim, and we suspect a court addressing the issue square on would also consider fair use as a possible defense.

Epic is also claiming the Defendants breached the End User License Agreement (EULA) by using the cheat tools. According to the complaint, Fortnite’s EULA bans players from creating, developing, or distributing programs that give a player an unfair advantage in the game. If the Defendants were selling cheat tools, then Epic seems to be a good position regarding the breach of contract claims.

Epic’s goal in these cheating lawsuits is to remove access to the cheat tools, which in legal terms means getting injunctions against the tool’s distributors. The Copyright Act grants injunctions as a possible remedy for infringement, in addition to monetary damages. The default remedy for a breach of contract claim is money damages, and injunctions are saved for certain cases. Winning on the breach of contract claims will earn Epic money damages but will not necessarily prevent the Defendants from continuing to sell the cheat tools. If Epic can win on the copyright claims, then it will probably be able to get injunctions against the defendants, forcing them to stop distributing the cheat tools.

All of the Fortnite cheating cases are ongoing, and we will provide updates when available. To review our previous coverage click here, here, here, here, here, here, and here.