But the real question for me is whether motion capture / rotoscoping is copyright infringement?
Because some of those Fortnite dances have frame-by-frame identical timing, making it pretty clear that the Fortnite artists must have used the original copyrighted work as "reference images" as they posed their characters for these animations.
For example, I was making a game and I wanted to realistic character movement.
I had considered doing what Jordan Mechner did for Prince of Persia, which was to film his brother, with a video camera, performing the various moves and then he rotoscoped it into the game:
But, while I wanted to do something like that eventually, it would require at least two people and lots of planning. I did also consider, as what Jordan Mechner did was 2D, but I was thinking of the idea of actually using two cameras - front and profile - to capture the same movements and then use these as background "reference images" for the front and side views in Blender, to pose a ragdoll model and, thus, effectively get a 3D "motion capture" but very much on the cheap.
(I did test this idea out with a "front and side" reference image - a still image, not an animation, but this was proof of concept - and the idea was to pose a model against both the front and side images at the same time. And, yeah, the principle is sound and it does work. If the pose and character outline is correct for both the front and side views simultaneously then it's kind of like solving a simultaneous equation and you can extract the 3D pose.
Well, technically, to fully pinpoint a point in 3D space, you ought to have front, side and top-down views (with no major occlusions) - but, in practice, two out of three ain't bad. I could go into a more elaborate discussion of this - gimbal locks and all that - but the basic gist is that the third axis is only needed to distinguish a very narrow line of 3D points that could prove confusing. A 3D to 2D conversion is losing information. But, in practice, this is deeply, deeply unlikely to actually be the case and prove to be any problem at all. That "front and side" are just fine - particularly in an animation, as you've got "before" and "after" to interpolate what has to be correct and, anyway, you can just use a bit of human intuition to know what you're looking at and fix any small issues manually.)
Anyway, that would require sorting out a friend or two to assist me. Choerographing which "moves" I wanted to happen in the game. Particularly if I wanted to go with the "two camera" technique - to pose a 3D model - and not just use 2D rotoscoping over film footage.
Thus, I temporarily knocked the idea on the head and thought I'd just grab some "placeholder" art for the time being, as I developed the game.
And then I remembered the photography of Eadweard Muybridge:
He was an early pioneer in photography, who used the then-new technology to capture a series of still images - like, many cameras in a row, designed to take photographs one after each other to capture motion (as this was before the invention of the movie camera) - of various things. Horses running, a man running and jumping, a bird taking off.
These were studies of motion. Which confirmed things that people hadn't actually known for certain before. Such as the fact that, yeah, when a horse is in full gallop, there are moments where all four of its feet are off the ground simultaneously:
Indeed, this helped confirm the notion that locomotion on legs is, in effect, a form of "controlled falling". You fall from one leg but catch yourself on the other and then alternately mirror repeat this over and over.
Muybridge is the grandfather of motion capture. And, for my purposes, the point was that he'd already properly set up and conducted a "motion capture" session (complete with useful things like "unit measurement" backgrounds behind his subjects) that is easily available via Google Images, as these are extremely famous works of pioneer photography.
So, for a "placeholder", I could grab Muybridge's "man walking" / "man running" sequences and then rotoscope them to get a sprite sheet to use in my game.
And, as I did this, something struck me. I wasn't the first person to have thought of doing this.
Take a look at Muybridge's "athlete running":
And compare it against a certain infamously impressive and famous bit of 8-bit animation:
Yeah, that's where Epyx got the realistic running animation for "Impossible Mission" (which was also re-used in their Summer Games / Winter Games titles as well). They thought of it first - rotoscope Muybridge.
But, anyway, to get back to the Fortnite dance stuff, the thing is that both I and Epyx understood something about Muybridge's work - it's out of copyright. He was doing his "animal locomotion" stuff in 1886 / 1887. Before the threshold the Berne Convention on Copyright starts, so it's public domain. And, anyway, Muybridge was doing this for science, not commercial purposes, so like most science is deliberately offered up to the public (for "peer review" and the furtherment of scientific knowledge).
You can rotoscope that without issue (and, in my case, this was only "placeholder", so if the game went anywhere - which it didn't - then I'd have redone it with Jordan-Mechner-like "motion capture" instead).
But things would get a lot more legally interesting if, for example, I decided to rotoscope from a Disney animation.
Which, by the way, Disney themselves did all the time:
But, of course, Disney's allowed to recycle its own material.
What interests me would be the legality of "motion capture" - rotoscoping - a copyrighted work by someone else. What if I grabbed that actor footage Disney had for Snow White and the Seven Dwarves of them dancing and then traced my own characters over it?
Or, taking this to another level, imagine someone taking a movie - say, the Avengers movies - and then tracing over every frame with their own hand-drawn animation?
That must surely be copyright infringement. But, well, nobody's mad enough to do something so labour intensive with no financial compensation and risk the legalities of having it declared "copyright infringement" that you can't make any money on it. So this never happens.
But what if it did happen? What would be the legality of it all?
Certainly, if you traced over all of the Avengers movies, you could definitely be done for copyright infringement on the basis of implicitly stealing the script - stealing the story, stealing the characters, etc. - but we could confuse that. What if you rotoscoped from the Avengers movie but then re-ordered it, changed the look and names of the characters and so forth?
What I'm getting at is that with such "motion capture" / "rotoscoping", you are technically not directly using the source material "as is". But you are copying its essence. Though the pixels ain't copied, the positions and timings of where they lie on the screen is being copied.
This is definitely a "derivative work". But, equally, it does contain an original spin in that derivation - as the way you hand trace over the frames would, indeed, be unique to you.
What I'm getting at is that I don't think this is legally cut-and-dried at all.
Some of the Fortnite dances do seem to have been manually re-interpreted. Their animators re-did them. But there are some that - placed side-by-side - seem to share perfectly identical timing. That could only mean that the original footage was directly used as "reference images".
The question is, basically, can you copyright Andy Serkis' gait? As he scampers along as Gollum or an ape from Planet of the Apes in his "ball suit" is the motion capture data - which is, in essence, all that survives of his performance on the end result - a copyrightable thing?
And, if it isn't, then should it be? In games and in Hollywood, "MoCap" is used all the time.
If you can't copyright the "creative expression" of an artist like Andy Serkis performing in his "ball suit", then what is the law saying? That you can only copyright an artist's performance is you're capturing photons, but not if you're capturing 3D locations?
(And then we can, of course, further confuse that. Footage gets "colour graded", so the actual end result we see is technically not really the actual photons that originally entered the lens of the camera. It's derived from that, but colour grading maps all the colours to different positions.)
Mind you, that said, I'm of a scientific and humanist mindset. The principle that, ultimately, all knowledge should be intrinsically free and there should be education for all. I wouldn't - from the above - ever be arguing to make copyright more rigid.
It should be looser and I'd love for something to be done to restore it to its original purpose, which was exactly the opposite of corporations claiming ownership over all of reality, but was actually supposed to be there to protect "the little guy" - the artist, the writer - from having their work stolen by large corporations, against whom you'd really have zero ability to compete.
The act of creation copyrights the work and then, if the big corporations want in on the action, then they've got to offer the artist something in return. You can't just take it - copy it - and then pass it off as your own, with no legal obligation to even credit the original author, let alone pay them.
That's what copyright was invented to prevent. Because there really was a fundamental societal problem before its introduction. Musicians really were only performing works in small private performances, fearing that anything too public would just get half-inched. Inventors not sharing their inventions with the world, as it would just get stolen.
The problem with the world without copyright - as the age of easy copying by technology rose (so no more need to have monks devote their whole lives to carefully hand-copying the Bible, when Gutenberg's press could knock out all these identical copies one after the other) - was that it really was causing culture and innovation to stall. Because the instant anything went public, someone with more money and clout than you could just swipe it and make a fortune - so why make any of your works public?
That was the problem that copyright was meant to be the solution to.
It has since been grossly and horribly abused.
And, speaking of Disney, Mickey Mouse should be out of copyright and public domain by now. America keeps shifting its copyright terms to keep Mickey in Disney's hands. But this really cannot go on forever.
Will the copyright term be extended to 1,000 years after an artist dies - because, yes, Walt is biologically dead, as you're not allowed to cryogenically freeze a living person for the exact same reasons that you're not allowed to lock a prostitute in your freezer - 800 years from now?
(This was also the part of the idea placed into copyright and patent law. You got plenty of time in which, as the original author, you could commercially profit from your work. Everyone needs to earning a living to pay the rent. But the idea was that, eventually, the copyright would expire and all these great works would become public domain, to benefit all of humanity forever more thereafter. The laws were invented to protect culture and innovation. This "deal" was the compromise - you're legally protected while alive to commercially profit from your labour but, in return, it goes public domain, for the betterment of society. That was the idea. You only need to look at how things actually go down to see just how warped it's now become.)
"Words ought to be a little wild - for they are assaults of thought on the unthinking."
- John Maynard Keynes
... actually seems like a pretty cool guy