What is behind the Nineteen Eighty-Fortnite: the commercial that launches a lawsuit against Apple

16 September 2020

The Italian version of this article was first published on Wired.

A few days ago Epic Games, creator of the well-known video game Fortnite, brought a case before the U.S. antitrust authority questioning the 30 percent commission fee charged by Apple’s App Store (as well as the 20 percent fee charged by the Google Play Store). Epic Games, 40 percent owned by a Chinese company, identified its target and violated one of the most widely debated rules of Apple while betting on the company’s intransigent reaction. As a result, Apple is blocking the Fortnite app on the App Store. Epic simultaneously launched a lawsuit and a communications campaign. D-Day for the attack was August 13, 2020.

From a communications standpoint, the move includes a mix of angry tweetstorms from Epic CEO Tim Sweeney and the release of a commercial that parodies the iconic Apple commercial that launched the company’s 1984 Macintosh. At the time, Apple was fighting a dictator; though that dictator went unnamed, the commercial was clearly aimed at IBM. In today’s version, a Fortnite warrior wields a unicorn to destroy a screen on which an anthropomorphic apple proclaims its plans for total domination.

The communications strategy

Beyond the merits of Fortnite’s claims—Fortnite is not limiting itself to renegotiating the 30 percent commission fee with Apple, but clearly is questioning the entire business model of the App Store, an extremely powerful distribution mechanism that also benefits app developers—what we are interested in examining here is Fortnite’s communications strategy. We are accustomed to witnessing the launch of an advertising campaign when a new product or service is offered on the market. This is the first time, at least in my memory, that the launch of a commercial and an entire PR campaign, complete with its own hashtag, #freefortnite, has been designed to accompany not the market launch of a new product or service, but rather a lawsuit against a competitor.

Here is the first question: Are Fortnite, a video game creator, and Apple, which creates many things but not video games, competitors? Today I would say no, but if we look to the future, perhaps Fortnite is planning to enter a market that has traditionally belonged to video game producers, a “walled garden,” and redefine its rules. Long before the App Store, video game console manufacturers used technological countermeasures to ensure that they—and only they—could provide games for their products. Look at how Sega cartridges differed from those of Nintendo. Later, section 1201 of the Digital Millennium Copyright Act supports this business model, which prohibits the “circumvention” of “technical protection measures,” which most of us call “Digital Rights Management,” or DRM.

The issue is obviously very complex, and we will follow its developments. What I have found interesting is that Fortnite has set up a powerful communications campaign drawing on the established American tradition of direct comparative advertising. Its function was to represent unequivocally the will (or need, as some may see it) to destroy Apple and to rally an immense number of supporters through the hashtag #freefortnite and a blog where Epic Games explains its reasons for the move. Epic Games can count on an army of 300 million players worldwide.

The memorable advertising wars between McDonald’s and Burger King, or the “Cola Wars” between Coca-Cola and Pepsi immediately come to mind. New technologies have also been used in digital marketing campaigns. Burger King recently used augmented reality to represent explicitly its archrival: once you downloaded the Burger King app, you could use it to frame a McDonald’s billboard with your smartphone and would be rewarded by seeing the billboard burn and a Burger King Whopper appear in its place.

This is a very strong example of direct non-performative digital marketing, almost shocking in its explicitness, especially to those of us who are accustomed to a much more “polite” advertising market. That is not by choice but by necessity, given the limits imposed by Italian law, which allows only comparative advertising based on performance, i.e., limited to the comparison of homogeneous and parallel features of competing products or services. Moreover, comparative communication with disparaging implications is never allowed.

The theme of comparative advertising and fair use

Has Fortnite fired the opening shot in a new advertising fight against Apple? It is unlikely that Apple will respond to the attack on the same level, at least in the short term. Indeed, Fortnite’s strategy is not accidental: it is certainly the result of a long, thorough, and expensive examination of the pros and cons related to communications choices, including from a legal point of view. While direct comparative advertising that is not performance-oriented is clearly allowed in the United States, creating a parody version of the 1984 Apple/Macintosh commercial perhaps required more reflection, especially in light of the U.S. doctrine of “fair use,” which represents an exception to the exclusive right of economic exploitation attributed via copyright to the author of a protected work.

That Fortnite’s commercial is a parody is clear to even the most casual viewer. Attentive viewers probably noticed that the anthropomorphic apple is not only bitten—a direct and unequivocal connection to Apple’s logo—but also rotten, with a little worm peeping out from the spot where the apple has been bitten. Here, parody highly likely crosses the border into satire, perhaps stepping over the permitted limits (if we were to discuss it in relation to Italian legislation and case-law).

Some commentators have even noticed a possible reference to Tim Cook’s image, since the sunglasses on the dictatorial apple seem quite similar to those worn by Apple’s CEO and with which he has been portrayed on many occasions. If, indeed, the glasses were intended to bring the image of Tim Cook to mind, perhaps unauthorized use of images of others could come into play. I remember the case of Italian singer-songwriter Lucio Dalla’s glasses and hat and the consequent undue exploitation of the artist’s image in a well-known Italian court case from a few decades ago. In that case, however, the fact that the image in question was an image of Dalla was unequivocal.

I wonder what the late Steve Jobs would do if he were still living and how he would react to Fortnite’s frontal attack. I wonder whether he would smile at the irony of an attack launched by the producer of the most famous and widely used video game in the world, the undisputed leader in the digital segment where, arguably, the entire digital revolution has its roots. Admittedly late, this summer I found myself reading The Game by Alessandro Baricco, which in the simplest terms can be summarized as follows: the author theorizes that the mindset of video game developers is the root of the digital revolution, with Apple one of its foremost expressions. Baricco writes, “The video game was the gymnasium of most of the hackers who generated the digital insurrection, and it was in a way the mental scheme in which the somewhat blurred intuitions of those brains tended to be encrypted. They were creating a world. And instinctively they imagined it with the design and logical architecture of a video game.” Will video game makers be the ones to undermine Apple’s hegemony?

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