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  • Writer's pictureDavid Baker

Fortnite trick-or-treaters free to dance through Halloween

Just in time for Halloween, judge rules Fortnite dance moves do not infringe copyright

A federal district court judge sitting in the Central District of California has dismissed a choreographer’s lawsuit against Epic Games, Inc. (“Epic”) alleging that Epic’s use of dance moves in the popular online video game Fortnite infringe his copyrights.

Epic’s Fortnite game is set in a virtual reality world where players get to choose a human-like avatar to represent their character as they explore, build, and destroy fortifications all while battling one another in player-versus-player combat. Fortnite players are allowed to customize their avatars by using a series of unique features, including “emotes,” which essentially re dance moves avatars can perform after winning a battle, when greeting one another, or when assembled for a virtual world concert.

Choreographer Kyle Hanagami (as have others) filed a copyright infringement lawsuit seeking monetary damages and an injunction against Epic based on his allegations that one of Fortnite’s emotes incorporated several of the real-world dance moves he had created and incorporated into a recorded 5-minute dance routine he posted on YouTube in 2017. Hanagami also obtained a federal copyright registration for the video, but not the specific moves, from the U.S. Copyright Office in 2021.

It is important to note that the Fortnite emote allegedly misusing Hanagami’s moves is just one of more than 500 emotes available to online players. However, it is undisputed that Hanagami did not give permission or grant a license to Epic to use those dance moves in the game.

In Kyle Hanagami v. Epic Games Inc., No. 22-cv-02063-SVW-MRW (C.D.Cal. Aug. 24, 2022) (Dkt. 45), the court agree with Epic’s arguments set forth in a motion to dismiss that each of Hanagami’s claims failed as a matter of law because the works on the whole were not substantially similar and the specific dance moves at issue were not protectable. It analogized Hanagami’s dance moves to Michael Jordan’s “grand jete” pose featured in a photograph which the Ninth Circuit previously held to be unprotectable apart from the photograph’s other creative elements in Rentmeester v. Nike, Inc., 883 F.3d 1111, 1119 (9th Cir. 2018). Just as with the Jordan pose, Hanagami’s dace steps constitute individual poses that, when taken together, constitute “building blocks for a choreographer’s expression” and thus are not protectable on their own.

Why It Matters. A plaintiff asserting a copyright infringement claim must allege in a federal court complaint (1) ownership of a valid copyright, (2) copying of original constituent elements of the copyrighted work, and (3) unlawful misappropriation by a third party. Unlawful misappropriation occurs whenever two works are “substantially similar” in their protectable elements.

The Ninth Circuit, which includes the Central District of California, considers a comparison of each work’s extrinsic components to determine if the works are substantially similar as a matter of law. Of course, this means that a court must “filter out” the unprotectable elements of a plaintiff’s work before it engages in the central analysis. This is often easier said than done because it entails determining what standard features are included in the copyrighted work that are typically associated with the type of work at issue. The same is true of any elements that are properly considered within the public domain. An examining court then compares the remaining, protectable elements to the corresponding elements of the defendant’s work in order to “assess similarities in the objective details of the works.”

The court in Hanagami noted that its decision is consistent with the U.S. Copyright Office’s recognition of a “continuum between copyrightable choreography and uncopyrightable dance,” where “[s]ocial dance steps and simple routines are not copyrightable.” Further, the court found it significant that Hanagami’s video featured human performers in a dance studio performing in the physical world for a YouTube audience while Fortnite features animated characters performing for an in-game audience in a virtual world.

The Hanagami decision should serve as a caution for anyone hoping to copyright real-world dance moves and then enforce them against the creator of similar animated moves displayed in a virtual world.

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