Epic Games gets latest lawsuit over dance moves ripped from Fortnite dismissed

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By Chris Cooke | Posted on Tuesday August 30th, 2022

Epic Games managed to have the latest dance motion lawsuit filed against it dismissed. The Fortnite creator has been sued by the choreographer behind the dance routine seen in the video for Charlie Puth’s song “How Long.”

He accused Epic of stealing an element of this routine for an “emote” he sells on his gaming platform. However, a court concluded last week that the allegedly stolen dance moves, taken in isolation, are not not protected by copyright.

Los Angeles-based choreographer Kyle Hanagami sued Epic earlier this year. His lawsuit was by no means the first regarding Fortnite emotes, one of the customizations players can purchase on the gaming platform, which causes an in-game avatar to move in a certain way.

The choreography is copyrighted, and various people have accused Epic of exploiting their copyrighted moves when creating certain emotes.

However, most of these legal claims stalled along the way, in part due to the complexity of registering choreography copyright in the United States. But Hanagami’s legal team felt his case was stronger than those before him.

In response to the lawsuit, Epic essentially argued that the specific moves shared by Hanagami’s “How Long” routine and the emote it was selling – called, appropriately, It’s Complicated – were too generic to be protected by copyright in isolation.

In many music cases where an artist is accused of stealing another artist’s work, a similar argument is used. When two songs share a few notes and beats, alleged song thieves – often successfully in court – argue that those few notes and beats cannot be copyrighted in isolation, even though they are very distinct, and/or they loop throughout a song.

The same principle applies to choreography. And especially if you can argue that individual dance moves are fairly common or universally known – what are sometimes referred to as “social” dance moves when discussing choreography and copyright.

Epic — in trying to have Hanagami’s lawsuit thrown out — backed up his case by citing the rules the US Copyright Office applied when deciding whether to allow a choreographer to record choreography. Under this guidance, he felt that the steps shared by the “How long” routine and its emote are not copyrighted.

In his ruling last week, Judge Stephen V Wilson explained: “Defendant relies heavily on the advice of the US Copyright Office, which recognizes the continuum between copyrighted choreography and dance not protected by copyright”. And while courts defer to such advice only “to the extent that such interpretations have the ‘power to persuade,'” the judge added, it is true that “Copyright Office advice suggests that the steps are not protectable”.

Referring to some previous Copyright Office rulings regarding certain popular dance moves, the judge noted, “The Copyright Office denied a request for steps called ‘Floss’, but when those steps been incorporated into a longer work, the Copyright Office has registered the work. . [And] the Copyright Office rejected a complaint to the ‘Carlton’ because it was simply ‘mere routine’”.

And while Hanagami’s choreography steps that were also found in the It’s Complicated emote involved more creativity than something like “the basic waltz step, the bustle step, and the second position of classical ballet”, they do, said the judge, “resemble the ‘thread’ [and] the ‘Carlton'”.

The judge then added that “the legislative history of the Copyright Act specifically states that ‘choreographic works do not include social dance steps and simple routines'”, and that the rules of the Office of the copyright recognize that “social dances, simple routines, and other non-copyrighted movements may not be registered as separate and distinct works of authorship, even if they contain a substantial amount of ‘creative expression’.

Wilson then mused, “The plaintiff does nothing to single out this advice, merely arguing that it is unconvincing without explaining why. On the contrary, the plaintiff refers to its originality and creativity in the composition of the stages, which the court favors. But regardless of how the court assesses the plaintiff’s steps – two seconds, four beats of music, or eight body positions, repeated ten times throughout the recorded choreography – the defendant has the better argument.”

“There is no authority to suggest that Plaintiff’s steps are copyrightable when considered out of context of Plaintiff’s entire work,” Wilson then concluded. “Indeed, the weight of authority suggests otherwise.”

With all of that in mind, Wilson granted Epic’s motion to dismiss.

LEARN MORE ABOUT: Charlie Puth | Epic Games | Fortnite | Kyle Hanagami