A Federal District Court judge for the Central District of California recently dismissed a choreographer’s claims against Epic Games Inc. (“Epic Games”) arising from Epic Games’ alleged use of his dance moves in his Fortnite video game. See Kyle Hanagami vs. Epic Games Inc.No. 22-cv-02063-SVW-MRW (CD Cal. Aug. 24, 2022) (Dkt. 45) (“the Order”).
As the Order explains, Fortnite features a virtual reality world where players can choose an avatar to represent them as they explore, build and destroy structures, and engage in player-to-player combat. Fortnite players can customize their avatars using a variety of features, including “emotes”, which are dances that avatars perform when attending concerts or to celebrate a victory in a battle royale game, among other things. Choreographer Kyle Hanagami has filed a copyright infringement and unfair competition lawsuit against Epic Games based on his allegations that one of FortniteThe nearly 500 emotes incorporate a handful of dance moves from a five-minute routine he posted on YouTube in 2017 and copyrighted in 2021.
A plaintiff asserting a claim of copyright infringement must sufficiently assert (1) ownership of a valid copyright; (2) copying original components of a work; and (3) unlawful appropriation. Misappropriation occurs when the works are “substantially similar” in their protectable elements. In the Ninth Circuit, courts compare the extrinsic components of a work to determine whether the works are substantially similar in law. Before a court embarks on this analysis, however, it must “screen out” non-copyrightable elements of the plaintiff’s work, for example, stock or standard features generally associated with the type of work at issue or which are in the public domain. The court then compares the remaining copyrightable elements to the corresponding elements of the defendant’s work “to assess similarities in the objective details of the works”.
Epic Games has decided to deny each of Hanagami’s claims under Federal Rule of Civil Procedure 12(b)(6), arguing that its copyright claims have failed in law because the works in the set n were not substantially similar and the dance moves in question. were not protectable. Epic Games also decided to dismiss Hanagami’s unfair competition complaint under state law on preemptive grounds.
The Court agreed with Epic Games. He compared Hanagami’s dance moves to Michael Jordan’s “grand throw” pose featured in a photograph, which the Ninth Circuit held was not copyrightable per se apart from the other creative elements of the photograph (i.e. i.e. camera angle, timing and shutter speed). Order at 4–5 (quoting Rentmaster c. Nike, Inc., 883 F. 3d 1111, 1119 (9th Cir. 2018). As the pose in question in Steward, Hanagami’s dance steps are individual poses which together constitute mere “constituent elements of a choreographer’s expression” and are therefore not copyrightable in themselves. Order at 5.
As the Court noted, this is consistent with the U.S. Copyright Office’s recognition of a “continuum between copyrighted choreography and non-copyrighted dance”, where “[s]Social dance steps and simple routines are not copyrighted. Just as the “Floss” dance, the “Carlton” and other “simple routines” are not copyrighted per se, Hanagami’s dance steps are also not copyrighted. copyright, particularly “when viewed out of context of the plaintiff’s entire work”. Order at 6–7. Instead, his dance moves are only potentially copyrightable when combined with the other elements that make up his copyrighted work. Thus, the Court concluded that the dance steps were not entitled to copyright protection.
Thus, the Court considered the similarities between the works as a whole and concluded that they are not substantially similar. While Hanagami’s video features human performers in a physical world dance studio performing for a YouTube audience, Epic Games’ work features animated characters performing for an in-game audience in a virtual world.
The court also dismissed Hanagami’s unfair competition claim under state law on preemptive grounds, finding that it was “an integral part of the copyright claim.” In so ruling, the Court rejected Hanagami’s argument that its claim could survive preemption, as it added the allegation that Epic Games’ use of dance moves gave the “false impression” that he approved. Fortnite. Essentially, the claim was still a copyright infringement claim.
The decision is the latest in a series of cases alleging infringement based on dance moves used in Fortnite emoticons. But while several other cases have been closed without further action for lack of registration before arriving at the merits, the requests for Hanagami involved a copyrighted work, which allowed the Court to go further and dismiss Hanagami’s claims after engaging in a substantive infringement analysis. Consequently, the Hanagami The decision confirms that courts can dismiss copyright claims at the pleading stage on the grounds that the works are not substantially similar in law. The decision further confirms the difficulties parties will face in seeking copyright protection for specific dance moves.
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