Stepping on Toes: The Fortnite Legal Dance Battle
Victory Royale? Not quite. In a recent opinion, the Ninth Circuit held that Fortnite’s developer Epic Games might be liable for infringing a well-known choreographer’s copyrighted dance routine. In the Summer 2020 edition of Three Point Shot, we covered another Fortnite dance move copyright dispute, which ended in dismissal of the claims. This time around, however, an appeals court reversed the district court’s dismissal of the suit. Given that the Ninth Circuit has previously noted that copyright protection for choreography is “an uncharted area of the law,” this latest decision may be foundational in the area of choreography copyright law. (Hanagami v. Epic Games, Inc., No. 22-55890 (9th Cir. Nov. 1, 2023)).
Epic Games is the developer of the wildly popular video game Fortnite. Initially released in 2017, Fortnite is a free-to-play game that derives revenue from in-game purchases, such as weapons, clothing and accessories for players’ characters. Fortnite players can also purchase animated movements or dances, called “emotes,” for their characters to perform when they celebrate a victory on the virtual battlefield or during virtual concerts in the game. Epic Games regularly releases new emotes for players to purchase.
Kyle Hanagami (“Hanagami” or “Plaintiff”) is a choreographer and dance instructor who has worked with many popular musical artists. Hanagami also has a sizable social media following. He regularly posts YouTube videos featuring dancers performing his original choreography, which is how this dispute began. On November 11, 2017, Hanagami posted a five-minute YouTube video featuring groups of dancers performing a dance he choreographed to “How Long” by Charlie Puth. Hanagami registered this dance with the U.S. Copyright Office as a choreographic work.
In 2020, Fortnite released a new emote called “It’s Complicated.” This emote is 16 counts and set to an original soundtrack without lyrics. In March 2022, Hanagami sued Epic Games, alleging that four counts in the “It’s Complicated” emote were copied from Hanagami’s “How Long” choreography, thereby infringing his copyright. [See the below screenshots, which were included in the appendix to the district court opinion and depict one side-by-side still image comparison of the dances]. Plaintiff’s complaint alleged that the “It's Complicated” emote contains “the most recognizable portion of [his] Registered Choreography, the portion for the hook at the beginning of the chorus of the song[.]”
Epic Games moved to dismiss the direct and contributory infringement claims, among others, arguing that the allegedly copied dance steps were not protectable elements of Hanagami’s work, and therefore, the works were not substantially similar.
In August 2022, the district court granted Epic Games’s motion to dismiss. The district court first stated that choreography, in general, is composed of “a number of individual poses,” which are not protectable “when viewed in isolation.” Further, the court determined that the dance moves at issue were unprotectable as they comprised a “small component” of Hanagami’s work, and, beyond the steps, Plaintiff had not identified other similar creative elements between the works (“Here, the two works are not substantially similar, because other than the four identical counts of poses—which are unprotected alone—Plaintiff and Defendant's works do not share any creative elements”).
Hanagami appealed the district court’s ruling, and the Ninth Circuit decided to dance with the Plaintiff, reversing and remanding the case in an opinion issued on November 1, 2023. The Ninth Circuit held that the district court erred on two fronts: first, in analyzing the elements of choreography and second, in dismissing Hanagami’s claim on the basis that the allegedly infringing dance moves were brief relative to the overall choreographic work.
On the first issue, where the district court essentially reduced choreography to mere poses, the Ninth Circuit mused…It’s Complicated. The Ninth Circuit analogized choreography to musical compositions in stating that equating choreography with “poses” is comparable to equating music with “notes.” Citing the Compendium of U.S. Copyright Office Practices, the court stated that individual movements or dance steps (e.g., the basic waltz step) and “short dance routines consisting of only a few movements or steps” with only minor variations are unprotectable on their own. The Ninth Circuit went on to find that a choreographer’s selection and arrangement of poses and other elements (including transitions, timing, pauses, energy, and repetition) are what takes them from unprotectable “building blocks” to protectable choreographic works. Again, citing Copyright Office policy, the court noted the Copyright Office “does not draw a bright line distinction between copyrightable choreography and uncopyrightable dance;” rather, there is a “continuum” where works generally fall somewhere in between.
In other words, while steps and poses may form the foundational elements of choreographic works, it takes two (or more) elements to tango. As such, for a court to assess substantial similarity, they must take all of these elements, including their selection and arrangement, into account. In reducing Hanagami’s choreography to poses and ignoring the various other elements, the district court erred in holding that the works at issue were not substantially similar as a matter of law, according to the Ninth Circuit. Thus, the appeals court stated that Plaintiff’s allegations were sufficient to withstand Epic Games’s motion to dismiss because he plausibly alleged that the creative choices he made in selecting and arranging elements of the choreography are substantially similar to the choices Epic made in creating the emote.
On the second issue, the Ninth Circuit explored the question of “How Long” an allegedly infringed dance sequence must be in relation to a whole choreographic work to give rise to a finding of substantial similarity. The district court had held that the four-count segment at issue was not protectable because it comprised only a “small component” of Hanagami's overall five-minute routine and was closer to an uncopyrightable “short” dance routine. The Ninth Circuit responded by stating that there are no bright-line rules for courts to follow on this issue. Rather, it is a context-dependent question that relies on both quantitative and qualitative assessments. Further, the court stated, “if the copied portion is deemed significant, then the defendant cannot avoid liability simply because it is short.” Hanagami asserted that the sequence is qualitatively significant as the “most recognizable and distinctive” portion of the choreography, as it is keyed to the chorus of “How Long” and is repeated eight times throughout the choreography. The district court only considered the length of the sequence and failed to consider its qualitative value and, as such, the Ninth Circuit held that the district court erred in dismissing Hanagami’s claim on this basis (and that such an issue should go to a jury).
The district court also held that the dance sequence was merely an unprotectable “simple routine.” The Ninth Circuit agreed that “simple routines” are not copyrightable but stated that “short does not always equate to simple.” The Ninth Circuit held that the complexity of a dance routine that would lend it to being categorized as a copyrightable choreographic work is a question for the fact finder. In so doing, the Ninth Circuit opened the door for additional discovery and expert testimony on remand.
Choreographic works remain largely unexplored in copyright jurisprudence. As such, this case is significant because the law it develops may well serve as a foundational lens through which future choreography copyright disputes, involving both real-world and online works, will be viewed. Further, throughout its opinion, the Ninth Circuit placed great emphasis on maintaining consistency with how choreography and other categories of works of authorship, such as musical compositions, are treated in copyright cases. Thus, not only did the appeals court trip the light fantastic through the issues in this case, but it also arguably made important moves regarding this developing area of law.