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Ninth Circuit court looks likely to revive copyright lawsuit over Fortnite emote

By | Published on Thursday 17 August 2023

Fortnite It's Complicated

A lawsuit over a Fortnite emote could be revived, after judges in the US Ninth Circuit Appeals Court considered arguments put forward by choreographer Kyle Hanagami in his copyright infringement litigation against the video game’s maker Epic Games.

Hanagami sued Epic last year, claiming that a dance sequence he created for Charlie Puth’s ‘How Long’ video had been ripped off for an emote in Fortnite called It’s Complicated. However, a lower court judge decided that the moves shared by the Puth sequence and It’s Complicated were too generic to enjoy copyright protection.

But yesterday – when considering an appeal filed by the choreographer – judges in the Ninth Circuit seemed persuaded by arguments that, when it comes to copyright and choreography, things are probably not as straight forward as the lower court assumed. Indeed, they might conclude, when it comes to copyright and choreography, “it’s complicated”.

Fortnite emotes allow gamers to have their in-game avatar move in a certain way. Given that Fortnite users buy emotes, meaning Epic is monetising the movements, that has prompted some interesting copyright questions when an emote seems to be based on a specific person’s dance sequence or some other kind of signature move.

Copyright does protect choreography and a number of people have gone legal over Fortnite emotes, accusing Epic of infringing their rights. However, those legal claims have generally been unsuccessful, often because of questions around the copyright status of short sequences of movement.

When dismissing the lawsuit over the It’s Complicated emote, the lower court judge concluded that – while Hanagami’s full dance sequence is sufficiently substantial to be protected by copyright – the short segment of it that features in the emote is not.

According to Law360, at a session before the Ninth Circuit Appeals Court this week, Hanagami’s lawyers set out why they think the lower court judge was wrong to dismiss the lawsuit on summary judgement.

The copyright status of the short segment of the ‘How Long’ choreography that Epic uses is much more complex than the lower court judge acknowledged, attorney David Hecht argued. And, moreover, this case centres on a relatively new but increasingly lucrative exploitation of choreography and therefore the questions it raises deserve full scrutiny in court.

“This area of the law is really new and still being explored”, Hecht said, before adding that “this case is about choreography that was taken because it was recognisable, because it was valuable”.

Epic’s lawyers again argued that the movements employed in the It’s Complicated emote are, well, far from complicated, and certainly not sufficiently substantial to enjoy copyright protection. “At best”, lawyer Dale Cendali said, this is “a simple routine that’s not copyrightable”.

However, according to Law360, the Ninth Circuit judges seemed unconvinced that the It’s Complicated dance sequence can be deemed “simple”. Nor that the fact the sequence is short automatically means it doesn’t enjoy copyright protection.

And when Cendali talked about precedents in “dance law”, one judge responded: “This seems like this is an evolving area. Where is the law? I’m trying to figure out where the law is”.

We now await to see how the Ninth Circuit rules.