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Choreographer on Charlie Puth video reignites debate about dance copyright on Fortnite

By | Published on Thursday 31 March 2022

Fortnite It's Complicated emote

The choreographer behind the dance routine in the video for the Charlie Puth song ‘How Long’ has sued Fortnite maker Epic Games alleging that a so called emote available within the gaming platform utlises his choreography without licence.

It’s by no means the first time Epic has faced a legal claim of this kind, with a flurry of lawsuits filed over Fortnite emotes a few years back when the gaming platform first became a global phenomenon.

Though many of those legal claims stalled, partly because of complexities around registering the copyright in choreography in the US. However, lawyers working for LA-based choreographer Kyle Hanagami hope this case is stronger.

If you’d like a formal description of Fortnite emotes, Hanagami’s lawsuit provides one. “Epic has created a marketplace for entertainment content that happens to be within Fortnite”, the lawsuit explains. “As a free-to-play video game, Epic allows players to download and play Fortnite for free. Fortnite is supported by in-game transactions where players can purchase virtual currency, called ‘Vinderbucks’ or ‘V-Bucks'”.

“The players in turn use V-Bucks to purchase customisations in an electronic marketplace for their in-game avatars”, it goes on. “These customisations include new characters, pickaxe modifications, glider skins, clothes and emotes (movements or dances). There are four types of emotes: common emotes, uncommon emotes, rare emotes, and epic emotes. The ‘rarer’ the emote, the more expensive or harder it is to obtain”.

The emote that is accused of ripping off Hanagami’s ‘How Long’ dance routine is called It’s Complicated”, which is apt, because when it comes to the copyright in dance routines things are quite complicated. Copyright does protect choreography providing it is fixed (so written down or captured in some way), although generally copyright seeks to protect dance routines rather than individual dance moves.

As in music cases, where the courts are generally uneasy about concluding a few notes of a song can be protected by copyright in isolation, with choreography there’s the debate about how we distinguish between moves and routines.

Now, in the US there is a copyright registration process, which means we have some clarity on whether any one work is sufficient to be protected by copyright, because if it is accepted by the US Copyright Office then we can assume it is. Although, as with music cases, there can still be problems down the line if someone lifts a key element of the copyright protected choreography, but only that element, so we are back to debating “can that element be protected by copyright in isolation?”

Though, with many of the initial choreography cases against Epic a few years back, the plaintiffs had only actually begun the process of registering the copyrights in their choreography as they sued the gaming firm. With the registration process still going through the motions – and the complexities over when a dance routine is original and substantial enough to have copyright protection – those lawsuits stalled.

However, the copyright in Hanagami’s routine from ‘How Long’ has been registered. It was properly formalised in Puth’s much streamed music video. And the routine is possibly more substantial than with the movements Epic was previously accused of ripping off. Although, at the same time, the It’s Complicated emote only uses part of Hanagami’s routine and has movements not included in the ‘How Long’ choreography so – you know – it’s still complicated.

The new lawsuit actually acknowledges the previous litigation, reckoning that Epic has actually started licensing some choreography for its emotes in more recent years, but only when it reckons it can get a very good deal.

“On information and belief, because of the lawsuits, Epic began to approach some artists about licensing choreography”, the lawsuit states. “However, on further information and belief, Epic typically approaches young and/or less sophisticated artists, like those who are catapulted to fame on social media platforms like TikTok, about licensing choreography for pennies on the dollar”.

It then adds: “Hanagami, a sophisticated businessman and established choreographer who is aware of the value of his choreography generally and the registered choreography specifically, was never approached by Epic about a licence”.

Commenting on the new lawsuit, Hanagami’s lawyer David Hecht told reporters: “Epic is profiting from my client’s hard work, and their infringement could not be more blatant. Epic’s sale of Kyle’s registered choreography as an item in the Fortnite Item Shop without his knowledge or authorisation is fundamentally unfair”.

“He felt compelled to file suit to stand up for the many choreographers whose work is similarly misappropriated”, he added. “Copyright law protects choreography just as it does for other forms of artistic expression. Epic should respect that fact and pay to license the artistic creations of others before selling them”.