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Ninth Circuit revives choreographer’s lawsuit against Epic Games over Fortnite ‘emote’

Celebrity choreographer Kyle Hanagami accused Fortnite of stealing a three-second snippet of his choreography and repackaging it to be sold to gamers as an "emote."

(CN) — The Ninth Circuit on Wednesday revived a lawsuit filed by celebrity choreographer Kyle Hanagami against Epic Games, alleging that their popular game Fortnite Battle Royale copied his registered dance moves.

Hanagami, who has worked with such artists as Justin Bieber, Jennifer Lopez and Olivia Rodrigo, copyrighted the five-minute choreography he first created for the 2017 Charli Puth music video "How Long."

In his federal complaint, filed in March 2022, he accused the makers of Fortnite of stealing a short snippet of the dance and selling it as an "in app" purchase that players can buy for their avatars. This "emote," essentially an animated gesture, is just one of countless ways that players can customize their video game characters, along with different outfits and accessories. They're used by players to celebrate a victory or during virtual concerts.

A U.S. district judge dismissed the suit in August 2022, ruling that the "emote" comprised only a "small component" of the choreography and that Hanagami lacked protection for individual "poses."

"The two works contain a series of different poses performed in different settings and by different types of performers: Plaintiff's dance is performed by humans in the physical world, and Defendant's Emote by animated characters in a virtual world," wrote U.S. District Judge Stephen Wilson in his decision, granting Epic Games' motion to dismiss the suit.

The dance move, sold by Fortnite as "It's Complicated" for $5, is short — maybe three seconds long at most — and consists of four "counts," or distinct motions. Judge Wilson ruled that only the entire five-minute dance was copyrighted, and not the four counts, which he implied were "simple routines."

But a three-judge panel for the Ninth Circuit disagreed.

"We are not convinced that the four-count segment is a 'simple routine,' as the district court implied," wrote Judge Richard Paez, a Bill Clinton appointee, in the unanimous opinion. "Short does not always equate to simple. Beyond the relatively brief duration of the copied steps, there is no evidence to suggest that the choreography is simple."

The Copyright Office has advised that simple routines — such as an end zone touchdown celebration or using one's arms to spell "USA" — are not eligible for protection. But Paez wrote that Hanagami's dance was something else — "a complex, fast-paced series of patterns and movements that involves the whole body and is performed by highly-trained dancers."

The case is now remanded back to the lower court, where it can proceed toward trial.

Hanagami's attorney, David Hecht, praised the ruling in a written statement, calling it "the most impactful decision about choreography since it was added to the copyright statute in 1976."

Up until now, he said, there had been very little guidance from the courts on how far choreography copyrights go.

"The Court’s holding is extremely impactful for the rights of choreographers, and other creatives, in the age of short form digital media," Hecht added. "Our client is looking forward to litigating his claims against Epic and he is happy to have opened the door for other choreographers and creatives to protect their livelihood."

A spokesperson for Epic Games declined to comment on the ruling

Released in 2017, Fortnite is one of the most popular video games of all time, with total revenue exceeding $10 billion in the years since.

It is free-to-play, but includes numerous opportunities for players to spend real money in order to customize characters. More a platform than a game, Fortnite includes a virtual world with many forms of entertainment, including virtual concerts performed by real artists.

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Categories / Appeals, Arts, Technology

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