This week, a panel of US appeals court judges has reignited the legal dispute surrounding Fortnite’s dance moves by overturning the dismissal of a lawsuit filed by professional choreographer Kyle Hanagami against Epic Games last year.
Billboard highlighted the opinion filed on November 1st, in which US 9th Circuit Court of Appeals Judge Richard Paez emphasized that while individual dance elements may not be eligible for copyright protection, their arrangement can be.
The lower court had previously ruled that choreographic works consisted of poses that were not protectable on their own.
It determined that the steps and poses used by Fortnite characters did not bear substantial similarity to Hanagami’s work, apart from four identical pose counts, as they lacked shared creative elements.
The 9th Circuit panel agreed with the lower court’s stance that isolated elements of choreography were not protectable.
However, Judge Richard Paez contended that likening portions of choreography to mere “poses” was akin to reducing music to just “notes.”
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The panel recognized that choreography encompasses various elements, including body position, shape, actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, and repetition, not limited to mere poses.
The panel ultimately concluded that Hanagami had credibly alleged that his creative choices in selecting and arranging choreographic elements, such as limb movements, hand and finger motions, head and shoulder actions, and tempo, were substantially similar to Epic’s choices in creating the emote.
In response, Hanagami’s lead attorney, David Hect, emphasized the significant impact of the court’s decision on the rights of choreographers and other creatives in the era of short-form digital media.
He expressed his client’s anticipation of litigating his claims against Epic Games.
Epic Games has previously faced multiple lawsuits regarding Fortnite’s “emote” feature, allowing players to trigger animations mimicking popular dance moves.
While it won one case in 2020, a false endorsement claim was allowed to proceed. Several other cases, including one involving The Fresh Prince of Bel-Air star Alfonso Ribeiro, were put on hold in 2019.
The case will now return to the district court, where the appeals court judges believe a more comprehensive record will provide a better opportunity to assess the appropriate level of copyright protection for Hanagami’s claims. Efforts to obtain a comment from Epic Games are underway.
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