As an individual that has been around, and currently living with, a call-of-dutier  (i.e. one that plays Call of Duty), if I heard @yoUrD0gzM1n3 scream “S*** THAT YOU F**** N****,”  over the microphone, I wouln’t flinch. The vulgar and violent communication between video game players, is not only normalized in today’s society, but vigilantly evades regulation. The video game industry, once thought of as an innocent pass-time or hobby, has since developed into a weapon for communication, and from the looks of it, it was my responsibility to hold @yoUrD0gzM1n3 accountable for his discriminatory remarks.


The video game industry began on a some-what yellow brick road. Beginning in the ‘70s and well into the ‘80s, video game launches such as Space Invaders, Pac-Man, Donkey Kong, and Flight started the mark of a new era: the gamer life.

But as video games began to increase in popularity, and new technology began to emerge, the video game industry, too, was greeted with a dark upgrade. The creation, mass production, and incorporation of computers, consoles, and P.C. monitors in our day-to-day lives created a new opportunity for video game Developers. Slowly, first person shooter (FPS), a genre of video games played from the point of view of the protagonist carrying a weapon, began to emerge.

Today’s FPS games are a general ode to one of the first series that pioneered the gaming industry down this gruesome path: Doom. The Doom franchise, developed by id Software, is a series that includes various FPS video games. Among the first, the Doom series introduced “3D graphics, third-dimension spatiality, networked multiplayer gameplay, and support for player-created modifications” that the gaming industry had seen at the time. 
Since, the FPS genre quickly grew, and more games, as well as players began to emerge, creating a gaming franchise obsessed with virtually-simulated violence. Today, certain games are so intwined with violence and gore, that their reputations have been entirely built upon these society-created gamer-pillars. Major gaming franchises such as League of Legends, Call of Duty, Counter-Strike, Dota 2, Overwatch, Ark and Valorant have caused uproar since their creation due to the gross level of violence and harm that is depicted and encouraged, and the emergence of hostile communities that support them, both through action and speech.


The FPS and violent video game genre, however wouldn’t have grown, if it not for the creation of “Voice Over Internet Protocol” (“VoIP”). VoIP allows for “Voice Chat,” and other subsequent communicative functions that allow game players to interact with others while playing. The infamous launch of Xbox Live on the original Xbox in 2002 marked a groundbreaking milestone in gaming history, allowing gamers to now “chat with both friends and strangers, in and out of games, across multiple games” all while from the comfort of their couch.  
But with creation of VoIP and mass incorporation into consoles and games, along came certain issues, as with all online communication tools and devices typically do. The introduction of communicative tools in the gaming industry allowed users to not only communicate, but also harass one-another too. Today, essentially all video games include some sort of communication tool. Users of most video games can usually chat, talk, or communicate with symbols or gestures with other users while also playing. Video games, however, are still socially considered games. To purchase, they are found in the video-game isle of Target or Best Buy, or in a video-game store like Game Stop.

But, despite being a game, they are considered more similar to Shakespeare’s Romeo and Juliet, and are constitutionally protected as such.

@SCOTUS on ‘Live’

The turning point of whether video games deserved constitutional protection ultimately rested on whether video games were to be considered more like mechanical entertainment devices or, rather, mediums of expression.

The Supreme Court ultimately put the nail in the coffin, and went with the latter.

 In Brown v. Entertainment Merchants Ass’n (2011), video games first received constitutional protection. In Brown, the Court invalidated a California law that prohibited the sale or rental of violent video games to minors without a parent present. The Court stated:

Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices … and through features distinctive to the medium. That suffices to confer First Amendment protection.

But, what if the Supreme Court went…the other way? Had the Court viewed video games more like “pinball machines”, today’s video game world and culture would be unrecognizable. Before Brown, courts generally viewed video games as lacking the communicative, informative element that is required of free speech in order for its protection to kick in. Video games were viewed to be more like “mechanical entertainment devices” and “recreational pass times” rather than a tool to spread knowledge or information.


Objectively, video games consist of overall rules that are essentially the same as other non-online games and pass times such as chess, baseball, and poker. The key distinction, however, is the iron shield protection of First Amendment speech that has permitted, and continues to permit, societal issues of verbal racial discrimination and harassment to grow.

Video games, although as a product are a form of expression, include certain communicative elements that shouldn’t necessarily be protected as such. What about the expression within the game, between players? Should @PIgSl@y3r’s chat to @B100DpR1NC3$$ stating “f*** y**, your mom is a b****” be considered ‘the spreading of knowledge or information’?

Brown protects video games as a whole, but fails to address or elude to the harmful effects that certain toxic communications between players because of the availability of communicative tools within video games, specifically violent ones. All communications between
players are therefore at the disposal of monitoring, or not, by game developers and software creators. But rather, the plight of violent and toxic communication and its impact on society is left in the hands of the gamer itself. It’s now up to @B100DpR1NC3$$ to bring justice for @PIgSl@y3r’s potty mouth by effectively remembering to submit a complaint after he finished slaying the dragon and never knowing or remembering to check if the user was ever banned.


To combat overall video game toxicity (generally encompassing all in-game and game-related harassment, hate speech, discrimination, bullying, sexualization, incitement of violence, and like conduct), developers have met calls for a solution with mediocre monitoring and reporting systems. Creators across the gaming industry largely rely on in-game player reporting systems, and artificial intelligence-backed automated filtering systems to find and detect abusive players. Community standards and guidelines are posted and updated, gamer-submitted reports are reviewed, and the automated systems continue to filter. Developers have also had to curtail their video games overseas, in order to abide by International censorship guidelines. Most recently in 2009, Russia took argument with the overall terroristic portrayal of the Russians in Activision’s Call of Duty: Modern Warfare 2, forcing Activsion to make edits in certain versions of the game, and banning the console version as a whole.

Censorship policies, however, are ultimately upheld by users and players themselves. In order to monitor speech, developers have created varieties of reporting mechanisms in which users can report other users for harassment, discrimination, and other forms of harmful speech. Players not only have the responsibility of beating the next level and unlocking the next perk, but in order to play the game, Activsion say’s they must help out, too.


Activision Blizzard, Inc. the first third-party game developer (solely developing software, and not physical consoles), first emerged in 1979 and has since made a core presence in the gaming-realm. Activsion’s world renowned games, such as Candy Crush, The Call of Duty Series, and World of Warcraft (oh my!). But along with the Developer’s positive impact and developments on the industry, also came the bad. The Call of Duty Series, the most violent of them all, has notoriously been scrutinized for its incessant depiction of violence and racism, as well as vulgar, hostile gamer-to-gamer communication. If you compare Atari’s 1980 Battlezone with Activision’s Call of Duty Series, the overall deadliness and gore depicted within the game has greatly expanded, as much as the harassment, hate speech, violence, and discrimination both portrayed and encouraged.

Most recently, Activision’s latest update to it’s Code of Conduct for the Call of Duty series outlines efforts in “combat[ting] toxic behavior.” Before it’s latest release of the series, Call of Duty: Warzone 2.0, Activision publicly reiterated its commitment in “delivering a positive gameplay experience.” The three key elements outlining the new code include: treat everyone with respect, compete with integrity, and stay vigilant.

The Developer introduced “automated filtering systems” that monitor and review both text-chat as well as account names, and announced that as a result 500,000 accounts have been banned and 300,000 more have been re-named. The Call of Duty team stated that the implementation of such filtering systems resulted in seeing “more than [a] 55% drop in the number of offensive username and clan tags reports from our players, year-over-year, in the month of August alone in Call of Duty: Warzone.”

The anti-toxicity upgrade includes new features for in-game reporting including an optional “dialog box” that allow players to communicate more about the situation, as well as more tools to help report offensive or inappropriate behavior. Players found to engage in offensive voice chat by the moderation team are also muted the use from all in-game voice chat. Activision explained:

“We know addressing toxicity requires a 24/7 sustained effort. Since our last Call of Duty® community update, our enforcement and anti-toxicity teams have continued to progress, including scrubbing our global player database to remove toxic users.”

 @B100DpR1NC3$$ does it all: Virtually beheading dragons and monitoring speech. 

Although Activision’s efforts to reduce overall gamer-toxicity have proved to be seemingly successful, the true credit should be given to the players that reported misusers. Activision has repeatedly credited their so-called “enforcement and anti-toxicity teams,” effectively creating a glare over the fact that these teams, aren’t exactly team-players. These teams instead rely on the leg work of in-game reports by actively-playing gamers, and artificial intelligence. As it turns out, the anti-toxicity team doesn’t even play the game. The team, as acknowledged by Activision, merely review reports that have already been submitted by game players. 

Rather than actively dropping-in on live games to monitor and view the live talking and chat functions as they are in use,  players themselves are required to do the monitoring, for them. Once players take the time to independently submit and report other users, only then will the “enforcement and anti-toxicity teams” review the report. Effectively, instead of a true monitoring system, inappropriate and non-conforming gamers will only ever be banned if someone else cares enough to report them.


So, going back to video games being protected as a medium of expression because they communicate ideas and social messages….. How can video games be considered a “medium of expression” to “communicate ideas,” yet evade any real monitoring of the expression within? If video games are to be considered in the boat of “books, plays, and movies” deserving of the protection of freedom of speech and expression, then it’s time for Developers and Software companies to do the leg work.

Communications between video game players are protected by the First Amendment, the same as posts by users on Facebook. Yet in society, video games are not thought of as a ‘way to communicate with someone’, the way that Facebook is, but rather as a game to play for entertainment. The reality, however, is that video games are no longer merely just games. With the rise in technology and incorporation of communication tools, video games are now a platform for toxic communication. Developers lack pressure or incentive to actually monitor the content and speech of video game players to one another, and evade further attention by publishing standards and mediocre efforts. Although Activision states that the new system “allows our moderation teams to restrict player features in response to confirmed player reports,” it’s up to players to start the process by taking the time to report in the first place. After a report is confirmed, only then, will the anti-toxicity get on their feet.


When the tune of the “Y.M.C.A.,” by The Village People starts to play, no matter the time or place, the urge to raise your arms and dance is impossible to ignore. A wave of nostalgia and childish-like happiness quickly fills the atmosphere, and as the chorus begins, you and (almost) everyone around you begin to dance the only way you know how: throwing your arms up in the air and forming the letters, duh!  But what’s not so obvious is that the “Y.M.C.A.” dance, irrespective of its wild popularity and incorporation into major television and film productions since its release in 1978, is not copyrighted. The songwriters, artists, and producers each have and continue to receive the recognition, compensation, and title they deserve for their contributions to the song itself, but the inherent choreography remains unprotected. According to the Copyright Office (“the Office”), a dance “whereby a group of people spell out letters with their arms” is simply too basic to deserve copyright recognition because no matter how distinctive it may be, it is nonetheless a commonplace movement or gesture.


Choreographers, since the beginning of the entertainment industry, have never received the legal protections that producers, songwriters, and artists have. Although The Copyright Act of 1976 (the “Act”) officially recognizes choreography as a protected form of creative expression, in order to qualify as copyrightable, the choreographic work must conform to the following elements: (1) it is an original work of authorship, (2) it is an expression as opposed to an idea, and (3) it is “fixed in any tangible medium of expression. In addition, the Supreme Court has held that an individual may not bring a copyright infringement suit under the Act until the individual has registered with the Office. Although choreographic works were finally recognized as worthy or deserving of copyright recognition and status, the application of copyright laws to choreography since its recognition has revealed a significant grey area for intellectual property law.


When assessing what qualifies as a copyrightable choreographic work, the Office acknowledges that the dividing line between what is a simple routine and what is copyrightable choreography is more of a continuum, rather than a bright line. The Office also indicated certain types of works that, from the outright, may not be copyrighted: common place movements, individual dance moves or gestures, social dances, ordinary and athletic movements, and short dance routines.

Whether a particular dance qualifies as a choreographic work, or not, ultimately rests on the Office’s assessment of the following elements collectively:

(1) rhythmic movement in a defined space

(2) compositional arrangement

(3) musical or textual accompaniment

(4) dramatic content

(5) presentation before an audience

(6) execution by skilled performers


Litigation surrounding the video game Fortnitereleased through Epic Games Inc., reveals just how large that grey area has grown to be. Although free to play, Fortnite’s revenue is derived from in-game purchases including purchasing a dance emote or a dance routine for the player’s avatar.

In 2019, Alfonso Ribeiro, who played the character ‘Carlton Banks’ on the TV show The Fresh Prince of Bel-Air, sought justice for Epic Games’ improper use of the Carlton as a dance emote in Fortnite but was both dismissed and rejected by the court and the Office. Following the direction of the Supreme Court, the court dismissed Mr. Ribeiro’s claim for failing to register and receive final registration of his claim with the Copyright Office. Registration is deemed to be “made” only when “the Register has registered a copyright after examining a properly filed application.” In an attempt to salvage his claim, Mr. Ribeiro proceeded to the Office but nonetheless left emptied handed. In reviewing the application, the Office refused to grant Mr. Ribeiro a copyright because the Carlton did not rise to the level of choreography since it was a simple routine made up of just three dance steps. Likewise, cases brought by rapper 2 Milly and the Backpack Kid against Epic Games alleging copyright infringement for their choreographic works the “Milly Rock,” and “the Floss” as an emote in Fortnite were also dismissed for failure to register with the Office.

So, since the cases were all dismissed for not having a valid registration with the Office, then having a valid registration with the Office is the golden ticket to defending your claim of improper infringement, right? Not quite.

Earlier this year in March, professional dance choreographer Kyle Hanagami (“Hanagami”) filed suit against Epic Games for using dance movements from the copyrighted routine used for the song “How Long” from Charlie Puth. Hanagami, unlike his predecessors above, secured a copyright for his choreographic work. Holding that golden ticket, Hanagami argued that Epic Games did not credit or seek his consent to use, display, reproduce, sell or create derivative work based on his registered choreography.

Regardless of the fact that Hanagami did secure his copyright before bringing a claim under the Act, the court yet again dismissed the case and agreed with Epic Games. The court stated that Hanagami’s steps are potentially protected only when combined with the other elements that make up his copyrighted work. Epic Games technically didn’t infringe on Hanagami’s copyright because the specific dance steps on their own were not entitled to copyright protection. When the works were evaluated as a whole, the court decided they were not substantially similar: “[w]hereas Hanagami’s video features human performers in a dance studio in the physical world performing for a YouTube audience, Epic Games’ work features animated characters performing for an in-game audience in a virtual world.”

And as if the grey couldn’t get any grey-er….it indeed does.


The outcome of all this dance-litigation eludes to the central need for choreography, on its own, to be recognized and protected as a separate work. Although securing a copyright to a choreographic work will get you in the door to the courthouse, there’s no guarantee that what you’ve copyrighted will actually be protected. Thus, it is crucial that the plight of choreographers be truly recognized. Inconsistent outcomes and unclear guidelines continue to aggravate the underlying issue of allowing choreographers to pursue the copyright protection they deserve for their works.  Copyrighting successful dance routines is to further help ensure dancers’ and their ability to monetize and profit from their work, but the murky waters that prevent registration and the unpredictability of outcomes in court will remain as barriers until we can clear the grey area.

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