Fortnite ruling could cut short dance moves in videogames
The US Court of Appeals for the Ninth Circuit has reversed a district court's decision to dismiss a copyright infringement case revolving around allegations of copyright infringement of choreography.
The case, Kyle Hanagami v Epic Games, concerns the dance moves featured in their widely played game Fortnite, and questions whether the choreography used in the game is eligible for copyright protection.
Hanagami contended that Epic Games had infringed the copyright of his choreographic work by creating and selling a virtual animation, referred to as an emote, which incorporated elements of his registered choreography.
In this context, an emote is a collection of icons or animations used in multiplayer games to communicate.
The appeals court's decision relied on an extrinsic test to judge how much the choreography and emote were alike.
It determined that Hanagami had made a believable case that his choreography and Epic's emote were similar.
The dispute gives the court an opportunity to “flesh out the relatively new and undefined” field of choreography copyright, according to Dorsey & Whitney counsel Ryan Meyer.
“What must a choreography copyright owner like plaintiff Kyle Hanagami allege to plausibly claim that the original and accused works are copied and substantially similar? Questions Meyer.
Federal Circuit: ‘Choreography is like music’
The appeals court noted that similar to other copyrightable materials like music, choreography is comprised of various elements that might be unprotectable when examined in isolation.
What is protectable, the appeals court declared, is the choreographer's selection and arrangement of these elements within their work.
Furthermore, the appeals court highlighted that a choreographic work is not limited to just poses—It can encompass a wide array of elements, including body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, and repetition.
The court found that Hanagami plausibly claimed that his creative choices in selecting and arranging his choreography, like limb movement, hand and finger actions, head and shoulder motion, and tempo, were similar to Epic Games' choices in creating the emote.
“The district court erred by breaking Hanagami’s work into a series of isolated and unprotected poses, without considering whether the selection and arrangement of those poses combined with other expressive elements are protected by copyright,” says Meyer.
Reducing the choreography to isolated moves would be like reducing musical composition to only notes, he explains.
Short dances moves still protectable?
The lower court had dismissed the claim on the grounds that the allegedly copied choreography was "short" and constituted only a "small component" of Hanagami's overall work.
However, the appeals court didn't decide if Hanagami's work should have strong or limited copyright protection, suggesting a need for a wider discussion about how choreographic works are protected in the digital era.
“This decision is saying to the publishers—be careful, because we are going to protect dance moves, even if they are short,” says Darius Gambino, sports and entertainment practice chair and partner at Saul Ewing.
“The dance moves at issue here are only about 20 seconds long, and the 9th Circuit was clear that it doesn’t matter how long a dance routine is, so long as the defendant copied it,” he added.
Meyers added: “This decision shows that even a short choreographic routine might be protectable if it is sufficiently complex, especially if it is significant to the rest of a work.”
Gambino highlights the decision's importance not only for dance and choreography but also for the video game industry.
The emergence of "emotes" in video games has triggered a wave of legal cases centred around claims of dance moves being allegedly copied, he explains.
These disputes have covered a range of dance styles, including iconic moves like the ‘Carlton’, the milly rock, and choreography from How Long used in Fortnite's ' It's Complicated' emote.
“Video game publishers make much of their revenue off of the sale of downloadable content like emotes, and emotes are sold within many of today’s most popular games,” says Gambino.
In previous cases, Epic successfully defended against other individuals who claimed copyright protection for their relatively uncomplicated dance steps.
However, Hanagami's assertions, which are more complicated and involve a larger registered choreographic work, could prove a greater challenge, according to Meyer.
Meyer suggests that video game makers can reduce their legal risk by using only simple dances with a few movements.
