Fortnite Dance Under Fire Over Copyright Lawsuits
Renowned choreographer Kyle Hanagami has appealed a copyright violation claim against Fortnite (Epic Games), alleging its emotes copy his YouTube choreography. This appeal is part of numerous lawsuits filed against the well-known video game franchise for using dances in their "emotes," most of which have been swiftly dismissed by the courts. However, here, the Ninth Circuit Court of Appeals overturned the Central District of California's initial dismissal, citing a flawed analysis of choreographic similarity, and remanded the case for further consideration.
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dronepicr (Wiki Commons)
Kyle Hanagami, a famous choreographer who has worked with artists such as Jennifer Lopez, Justin Bieber, Blackpink, sued video game company Epic Games for infringement of his published choreography last year. Earlier this month, the Ninth Circuit U.S. Court of Appeals reversed and remanded the case after determining that the lower court judge wrongly dismissed the claims.
In November 2017, Hanagami published a five minute YouTube video of himself and students dancing to Charlie Puth's song "How Long." The video is registered with the United States Copyright Office as of February 20, 2021, excluding the music from unlawful copying. Epic Games, the distributor and developer of Fortnite, a popular videogame, released dancing “emotes” for players to buy in the game. Hanagami alleged in his initial complaint that one of these “emotes,” called “It's Complicated,” contained the “most recognizable portion” of the piece, which is a section of the hook from the beginning of the chorus, repeated multiple times throughout the dance.
The District Court of the Central District of California dismissed Hanagami's claims of copyright infringement and unfair competition on the basis that Hanagami failed to allege that the two works were substantially similar. In analyzing the similarities between the two works, the court noted that the steps in contention were only a two-second combination of eight bodily movements. In the opinion, the court notes that there is a line between copyrightable choreography and uncopyrightable dance, and found that the individual poses lacked protection because the poses in contention were more similar to an uncopyrightable short routine, which was a small part of Hanagami's choreography.
Upon Hanagami’s appeal of the decision, the United States Court of Appeals in the Ninth Circuit recently reversed and remanded the circuit court's decision after finding the lower Court erred in its application of the substantial similarity test, as Hanagami plausibly alleged the works were substantially similar. The Court found that Hanagami did own a valid copyright and that Epic Games copied protected aspects of his work.
The Court noted that to prove the second prong, Hanagami must plausibly allege 1) copying and 2) unlawful appropriation, demonstrated by a showing of substantial similarities between the two works. The Court explained that they use a two-part test to determine substantial similarities, which requires it to look at 1) the objective similarities regarding the protected elements of each work and 2) the similarity of expression from the ordinary, reasonable observer. The Court found that the lower Court incorrectly analyzed the elements of the choreography by reducing it to a series of individual “poses.” The Court further noted that a choreographer's protected work includes “selection and arrangement of the otherwise unprotected elements,” and that the length of the work does not preclude Hanagami choreography from protection.
Creatives in the world of dance have often found a lack of protection regarding their choreography, and many are hoping that this decision will increase the protections available to choreographers.