Last September, we reported on the successful dismissal of a US copyright infringement suit against Epic Games, developer of hit battle royale video game Fortnite.  The suit was filed by celebrity choreographer Kyle Hanagami who claimed that one of Fortnite’s-game dance moves or “emotes” titled “It’s Complicated” bore a striking resemblance to his choreography to Charlie Puth’s song “How Long”. 

The battle continues after the US Court of Appeals for the Ninth Circuit reversed the initial dismissal decision and sent it back to the lower court to re-take the decision.  Epic has not been found liable, but the lower court will now reconsider Mr Hanagami’s copyright infringement claims in the light of the higher court’s comments on the state of US copyright law.  This case will be of interest to game developers minded to use in-game emotes and dances going forwards, given the importance of the USA in the video games market. 

The background

The original claim in the US District Court for the Central District of California concerned a five-minute video of choreography by professional choreographer and dance instructor Kyle Hanagami. Mr Hanagami contended that a recognisable two-second portion of his dance was copied by Epic Games in the form of the “It’s Complicated” emote. 

To succeed in his claim for copyright infringement against Epic Games, Mr Hanagami needed to prove two key elements: 

1. Ownership of a valid copyright in his choreography; and 
2. Epic Games substantially copied protect aspects of that choreography. 

Mr Hanagami’s case followed several similar disputes against Epic that all failed because the US Copyright Office refused to register and protect individual dance moves or simple routines under US copyright law.  

In the initial District Court proceedings, the court accepted that Mr Hanagami had validly registered and obtained copyright protection over his longer five-minute dance routine as a work of choreography.  Nevertheless, it determined that the “steps” allegedly copied by Epic Games were not protectable in isolation because they only make up a “small component” of Mr Hanagami’s overall work. 

The District Court then evaluated whether Mr Hanagami’s entire protected work and Fortnite’s short emote were “substantially similar”.  It concluded that they were not substantially similar on the basis that the two works each contain a different set of poses performed in different settings by different types of performers and, beyond the dance steps, there were no similar creative elements in the respective works. 

Decision by the US Court of Appeals on approach to dance copyright

The US Court of Appeals for the Ninth Circuit unanimously found that the District Court was not entitled to dismiss Mr Hanagami’s case on the grounds that it did.  Its decision was based on finding that the District Court “erred” in both its application of the substantial similarity test and its consideration of the steps in issue as a “small” part of the overall work.

The Court of Appeals found that the District Court’s approach of reducing Mr Hanagami’s choreography to “poses” considered in isolation was fundamentally at odds with the way the US analyses copyright claims for other art forms, such as musical compositions.  Under US law, individual movements or dance steps are not copyrightable.  This allows individual choreographers to combine unprotected individual movements to produce new chorographic works, in the same way that composers combine individual notes to produce new musical works.  But the Court of Appeals determined that more than just the poses should be considered in understanding the scope of protectable choreography, and that such a work may also include body position, body shape, body actions, transitions, use of space, timing, pauses, energy, motif, contrast, canon and repetition. 

For this reason, the Court of Appeals concluded that Hanagami’s creative choices (including the movement of the limbs, hand and finger movement, head and shoulder movement and the tempo) could be protectable, and that it had been at least plausibly alleged that Epic had copied those choices in creating their emote and a full hearing on these points should be made. 

The court also held that the District Court erred in dismissing Hanagami’s claim on the basis that the choreography was a “short and small” component of the overall work and a “simple routine”.  It determined Hanagami had, at least plausibly, alleged that the “two-second four-beat sequence” had substantial qualitative importance to the overall work and additionally that Hanagami had plausible alleged that sequence in insolation from the longer work could meet the elements required to be protected as a choreographic work. 

As a result of the Ninth Circuit decision, the case will return to the District Court to be determined at a further hearing, taking account of the Court of Appeals’ views on these points of the correct approach to the law of copyright. 

Analysis 

While the Court of Appeals may have disagreed with the District Court on these points of US copyright law and sent it back to the lower court to re-take their decision, it should be emphasised that this does not in any way mean that the Hanagami dances currently constitute any act of infringement on the part of Epic, pending that decision before a jury. 

While we are not US lawyers qualified to do more than report on this decision or comment from a UK law perspective, we note that all previous dance move Fortnite cases in the US have ultimately failed.  Nonetheless, the case provides further guidance to US lawyers on the US approach and is a reminder to video game publishers more widely that dance moves remain a topical area for the clearance team to consider, along with the other usual aspects of any video game.

From a UK law perspective, as we outlined in our previous update, the UK court would focus on the protection of the overall five-minute choreographic routine as a dramatic work rather than focusing on whether the shorter two-second section was protectable in isolation.  The assessment of infringement would then consider whether a substantial part of the original work had been copied, taking a qualitative and quantitative approach.