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Epic Games gets latest lawsuit over ripped off dance moves in Fortnite dismissed

By | Published on Tuesday 30 August 2022

Fortnite It's Complicated

Epic Games has successfully got the latest dance move lawsuit filed against it dismissed. The Fortnite maker was sued by the choreographer behind the dance routine seen in the video for the Charlie Puth song ‘How Long’.

He accused Epic of ripping off an element of that routine for an ‘emote’ it sells within its gaming platform. However, a court last week concluded that the allegedly ripped off dance moves, when taken in isolation, are not protected by copyright.

LA-based choreographer Kyle Hanagami sued Epic earlier this year. His lawsuit was by no means the first in relation to Fortnite emotes, one of the customisations players can buy within the gaming platform, and which make an in-game avatar move in a certain way.

Choreography is protected by copyright, and various people have accused Epic of exploiting their copyright protected movements when creating certain emotes.

However, most of those legal claims have stalled along the way, partly because of the complexities around registering the copyright in choreography in the US. But Hanagami’s legal team reckoned his case was stronger than those which had gone before.

Responding to the lawsuit, Epic basically argued that the specific moves shared by Hanagami’s ‘How Long’ routine and the emote it was selling – called, aptly, It’s Complicated – were too generic to be protected by copyright in isolation.

In many music cases where one artist is accused of ripping off another artist’s work, a similar argument is used. Where two songs share a few notes and beats, it is often argued by alleged song thieves – often successfully in court – that those few notes and beats can’t be protected by copyright in isolation, even if they are very distinct, and/or they loop throughout a song.

The same principle applies with choreography. And especially if you can argue that individual dance moves are pretty commonplace or universally known – what are sometimes referred to as ‘social’ dance moves when discussing choreography and copyright.

Epic – in trying to get Hanagami’s lawsuit dismissed – backed up its arguments by citing the rules applied by the US Copyright Office when deciding whether to allow a choreographer to register any one piece of choreography. Under that guidance, it reckoned, the steps shared by the ‘How Long’ routine and its emote are not protected by copyright.

In his decision last week, judge Stephen V Wilson explained: “In large part defendant relies on guidance from the US Copyright Office, which recognises the continuum between copyrightable choreography and uncopyrightable dance”. And while courts only defer to that guidance “to the extent that those interpretations have the ‘power to persuade'”, the judge added, it is true that “guidance from the Copyright Office suggests that the steps are unprotectable”.

Referencing some past decisions by the Copyright Office regarding some popular dance moves, the judge noted: “The Copyright Office rejected a claim to steps called the ‘Floss’, but when those steps were incorporated into a longer work, the Copyright Office registered the work. [And] the Copyright Office rejected a claim to the ‘Carlton’ because it was merely a ‘simple routine'”.

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

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

Wilson then mused: “Plaintiff does nothing to distinguish this guidance, simply arguing it is not persuasive without explaining why. Rather, plaintiff references his originality and creativity in composing the steps, something to which the court is sympathetic. But whichever way the court evaluates plaintiff’s steps – two seconds, four beats of music, or eight body positions, repeated ten times throughout the registered choreography – defendant has the better argument”.

“There is no authority to suggest that plaintiff’s steps are protectable when viewed out of the context of the whole of plaintiff’s work”, Wilson then concluded. “Indeed, the weight of authority suggests otherwise”.

With all that in mind, Wilson granted Epic’s motion for dismissal.